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Case Acceptance and Client Screening
It is tempting (sometimes necessary) as a new lawyer or at the start-up of your own firm to take whatever clients or cases walk in the door. Even the most successful lawyers sometimes suffer from the fear that the most recent client that engaged the attorney will be his or her last. But there are dangers in accepting every case. Lawyers who fail to initiate some discipline in the types of cases they accept early in their practice are the lawyers who eventually find that they are not managing their law practice - their law practice is managing them.
In the small firm, this often leads to overwork, mistakes, errors in judgment, missed deadlines, lapses in communication with clients, strained firm financial and labor resources; and, finally, an unprofitable and stressful practice. The dangers do not stop there. The lawyer's personal life can then become affected in very negative ways. Malpractice claims and ethical complaints can jeopardize the lawyer's career and can contribute to depression, failing personal relationships or substance abuse. Case acceptance criteria or guidelines, therefore, are an essential management tool for the practice of law, particularly in the small firm.
Large firms must also be vigilant in analyzing their practice mix. The types of problems arising in larger law firms when they fail to control their practice or case mix are usually internal ones. Equity in partner compensation is difficult when the practice areas within a firm do not generate compatible billing rates. The marketing dynamics of certain practice areas can be offensive to other members of the firm and firm clients. Client mix can also become an issue. Corporate clients may not be comfortable sitting in the reception area with the typical personal injury or criminal client. Proper and profitable legal and non-legal staff utilization can also be an issue. A practice area that is more labor intensive than others may strain the resources available to other practice areas. The viability of a larger firm can be threatened if proper consideration and attention is not given to practice and case mix. Case acceptance guidelines in the larger firm, therefore, focus the firm on the most compatible and profitable types of practice areas and mix and help to reduce the internal conflict in a large firm.
Establishing Case Acceptance Guidelines
Establishing case acceptance guidelines can be as simple as making a list of clients, case types or practice areas that you prefer not to handle. You may develop criteria within certain practice areas that must be present in a case in order for you to accept it (i.e., clear liability, insurance coverage, etc. in personal injury cases, for example). You may decide that you don’t want to handle certain types of matters (i.e., domestic matters, real estate, bankruptcy, contingency fee work). With experience, you may determine that certain client characteristics are difficult for you to work with. Your guidelines can remind you to look for those characteristics and steer away from clients who possess them.
Factors that may be considered in establishing case acceptance guidelines are:
• practice areas the lawyer desires to develop or in which he or she has expertise
• types of cases within practice areas for which the lawyer has expertise or desires to develop
• the types of clients with whom the lawyer desires to work
• the revenue generated by selected practice areas or case types
• the labor and cash requirements of the firm by certain types of cases or practice areas
• facts that must exist in certain types of cases (i.e., clear liability, insurance coverage, etc., in personal injury cases)
• the type of fee arrangement of the case (i.e., hourly, flat fee or contingency)
It should be a firm policy that each case be analyzed by a partner (or a committee of partners in larger firms) prior to acceptance based on your firm's case acceptance guidelines. Consistent compliance with pre-established case acceptance guidelines will help protect the lawyer and the firm from the types of problems mentioned above.
Case and Client Screening
Once case acceptance guidelines are established, case and client screening procedures should be developed. Proper case and client screening assists the attorney in identifying whether the case falls within the pre-established case acceptance guidelines.
Case and Client Screening Procedures
As previously stated, case and client screening is the process by which information is obtained which will enable you to make an informed decision regarding whether or not the matter meets your case acceptance guidelines. Pre-screening may expose other information which will assist you in evaluating the prospective client. Finally pre-screening provides the opportunity for you to communicate important information to the client about his or her case and to establish realistic expectations.
Case and client screening procedures should include the following components:
Client Pre-screening. Before accepting a new client, you should:
• Conduct a telephone interview with the client to obtain initial client and case information which will be reviewed to determine if a face-to-face interview is warranted. A staff person may conduct the telephone interview.
• Conduct a face-to-face client interview with the client to obtain client and case facts and to observe the demeanor of the client. The attorney should conduct the face-to-face interview. In addition to questions relating to fact, the face-to-face interview should also provide the following information or impressions:
• Has the client engaged or attempted to engage other lawyers for this case? If so, why was the case rejected by one or more lawyers?
• What is the client’s attitude toward other professionals such as doctors, accountants, bankers, lenders?
• Does the client have a reasonable approach to the case?
• Does the client agree with the fee arrangement and is the client able to pay the fees for your services?
• Is the client willing to pay a retainer in advance of services rendered?
• Does the client have all of the documentation associated with the case and is he or she prepared to submit those to you?
• Complete a New Client Information Sheet. This form is for firm use in opening the client’s file, tickling the file for important dates, deadlines and file review dates, and performing a conflicts check.
• Complete a client/case questionnaire. This type of questionnaire varies with practice area or case type. This form is designed to provide all client and case facts and to document the sending of engagement/non-engagement letters and other appropriate forms.
• Complete a conflict-of-interest check. The New Client Information Sheet should provide space for the listing of related and adverse parties to the case. This list should be checked against the firm’s conflicts information to be sure no conflicts exist that would prohibit the firm from accepting the case.
Case Analysis.Once client and case information has been obtained the solo practitioner, partner or committee of partners should review the information against the firm's case acceptance guidelines. In doing so, the following factors should be considered:
• Do the facts of the case support proceeding with the case?
• Your expertise and experience with similar cases.
• Your availability to handle the case.
• Your "gut" reaction to the client and the case.
• The prospective client’s attitude toward the case (e.g., unreasonable expectations for the case, attempts to tell you how to handle the case, unreasonably focused on winning at all cost).
• The ability of the client to pay for services provided and advance expenses. This is particularly important in risky cases.
• Case value vs. cost to represent (use of firm resources, expense advance requirements, loss of opportunity);
Establishing Realistic Expectations
After the screening process has been completed and a decision to represent the client has been made, the attorney should discuss the merits and problems of the client’s case with the client. It is important that the attorney convey verbally and in writing (via an engagement letter) the following to the client:
• The issues involved with the case.
• The problems regarding the case.
• The process involved in pursuing the case.
• The client’s obligations throughout the case and any specific requirements of the client.
• The estimated time frame for case resolution.
• The economics of taking the case to trial or settling the case.
• The attorneys and/or staff who will be involved with the case.
• How the firm will manage the case.• How the firm will communicate case status with the client.
• Warning: Avoid any guarantees to the client regarding the outcome of the case.
Case acceptance guidelines and good client and case screening procedures are the first steps in building a profitable, quality practice. Doing good work will ensure that good clients and cases continue to walk in the door.
Resources used for this piece and which may be beneficial to you in establishing case acceptance and client intake procedures are:
The Lawyer’s Desk Guide to Preventing Legal Malpractice, American Bar Association Standing Committee on Lawyer’s Professional Liability. (Available through the TNBAR Management Services Library.)
Risk Management, Survival Tools for Law Firms, by Anthony E. Davis, ABA published jointly by the Section of Law Practice Management and Center for Professional Responsibility. (Available through the TNBAR Management Services Library.)