Hulcher & Hays, LLC, Client Development Consulting

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Celebrating 25 years in business, 1993-2018

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For commercial litigators, getting repeat business can be enhanced
by paying attention to clients after the trial is over

One fateful day, circa 1994, a small law firm gave me a list of about 250 large Phoenix-area businesses and asked me to find out who their litigation attorneys are. The goal: to find out if the big companies are married to the big law firms.

I accepted the assignment before I realized to what depths I would have to descend (literally) to gather the required information.

In those days, back when dinosaurs ruled the Earth, you couldn't just go to the Clerk of the Court's website. You had to personally visit the basement of the Central Court Building, which was like doing time in a communal holding cell. In Port-au-Prince. During the summer. On election day. At the height of a Tontons Macoutes uprising.

When I arrived for my research project, I wasn’t sure if I was in the right place or if someone had opened a driver’s license substation and child care center in Durant’s kitchen at lunch time. The sheer pandemonium that reigned in the public area was exceeded only by the demographic, socioeconomic and aromatic diversity of the three dozen or so people who were shoehorned into it.

Ignoring as best I could the sea of human debris that engulfed me, I spied a row of computer terminals along the south wall. I couldn’t be sure of the vintage, but it looked like the first two had blown a vacuum tube. The third displayed 24 scrolling rows of Press F1 to Contin@@@@@@@@@, the fourth was occupied by a furtive-looking character talking into his shirt cuff, and the fifth was unattended, proving that God does indeed have a plan for my life (and, I briefly feared, that it included infecting me on this day with a lethal airborne virus that would leave me in a state of Job-like torment).

Using my briefcase as a cow-catcher and my Almond Joy wrapper as a surgical mask, I lowered my head and steamed west, slowed only briefly by a trio of shrieking, undermedicated urchins whose mother’s interest in reading about Snoop Dog and Debbie Reynolds’ love child won out over her presumed wish to keep them from being mashed into the indoor-outdoor carpet that looked like it had been recycled from a movie theater.

Four hours later I, too, was shrieking and undermedicated, but I had what I came for: the name of every mouthpiece who, during the previous five years, had filed or answered a lawsuit in Maricopa County Superior Court on behalf of one of the Big 250.

Surprising Findings

The news that I delivered to my client was warmly received: that there was virtually no apparent relationship between company size and firm size, and that several of the Valley’s largest companies were as likely to use a litigation boutique or sole practitioner as they are to hire a major firm.

If those little tidbits interest you, so should this one. Of the 250 companies that I researched, 72 had been involved in two or more lawsuits in five years. Of those 72 – this is where it gets good – only 11 used the same attorney or firm more than once.

That’s just 15%. One-five. Shocking. So much for the "marriages" between litigation firms and their clients. If most other types of business could only get one out of six or seven customers to come back for more, they’d be belly-up in no time.

Focus Group

A couple of weeks later, I conducted a focus group for another firm. The group consisted of 15 business owners – some clients, some not. The purpose of the session was to find out how those individuals choose their legal help, what they like and dislike about working with attorneys, etc.

About halfway through the session, I thought I’d test this bunch’s selection of litigators against the companies I checked at the Clerk’s office.

"How many of you own companies that have sued someone or been sued in the last five years?"

Thirteen out of 15.

"Okay, of you 13, how many were involved in two or more lawsuits in the last five years?"

Nine. Wow. More than half. Don’t these guys use an attorney for anything except litigation?

"OK, good ... I guess. Now, of you nine, how many used the same attorney or law firm more than once?"

Two out of nine. Twenty-two percent. Better than the 250-company sample, but not by much.

"To you who had multiple lawsuits but used a different attorney each time, allow me to ask this question: What gives? I mean, was it because you lost the first case and wanted better talent the next time around?"

To my surprise, the won-lost record wasn’t a major consideration. In fact, five of the seven dumped a winning lawyer. These were their consensus answers:

First, "Litigation isn’t much fun. A lawsuit is such a negative experience that, win or lose, when it’s over, my attorney is part of a bad memory. The next time I’ve got a legal battle, I kind of want to fight it with a new guy."

Second – pay attention, now – "When the lawsuit’s over and I pay my bill, I never hear from my attorney again. I feel as though he has fired me. By the time the next lawsuit rolls around, I’ve met another lawyer who seems like he could do the job, and I use him instead."

Treating Client Infidelity

There may not be much you can do about the first problem, but the second one’s a different story.

One of the keys to hanging on to a litigation client is to keep your relationship alive between lawsuits. If he was more or less happy with you in the first trial, he should use you again if he thinks you're up for it. And if, in the first trial, he was upset with you or the result, maybe the only way to salvage the relationship is to spend some time with him after he’s cooled down. (He still may not be wild about you, but if you’re the best – or only – trial lawyer he knows, inertia may cause him to hire you again.)

There’s no secret formula for keeping in touch with litigation clients, but it does require discipline, effective use of Outlook and, in some cases, courage. Here are a few practical tips:

  • Bribe him. After the end of the trial, send him a nice present. Restaurant gift certificates are nice, as are food baskets, wine, and sport utility vehicles.

  • Have a heart-to-heart. A month or so after the end of the trial, invite the client to lunch or make an appointment to visit him. Talk about the case. Ask him if there’s anything he wishes you’d done to achieve a better result or make him happier. Acknowledge any mistakes (without giving him any silly ideas about suing you for malpractice) and, if he has any misconceptions about your performance, gently set him straight. Tell him you value him as a client and hope that if he needs a litigator again he’ll keep you in mind.

  • Bribe him again. Wine and dine him occasionally, if for no other reason than to ward off the competition. And keep him on your holiday card and gift list.

  • Become his counselor. Dispense some preventive medicine. Every year or so, have a general discussion with him about his company. Visit his place of business. Find out if his personal and business affairs, such as tax planning, succession planning, buy-sell agreements, employee manuals, etc., are in order. If they’re not (they won’t be), introduce him to one of your partners. Do whatever you can to keep him lawsuit-free; eventually he’ll get in trouble anyway, and when he does you’ll be there.

  • Stroke him. Finally, don’t be shy about telling him again that you’re proud to be his attorney (even if, truth be told, you’d rather come down with a case of cholera than go into court with him again). Those are the kinds of statements that help cement a relationship and can keep you in his good graces while you’re waiting for his next lawsuit.

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