9.06. Reading: A Lawyer’s View of Being a Litigant, Robert S. Caine, Letter, New York Law Journal (May 16, 1994), at 2

Reading Guide

Issues:

– As you read, put yourself in the place of the client. Imagine the frustration of not understanding what is going on, why it is taking so long, and why the attorney does not seem to be taking the case seriously. How can you address these concerns?
– Think about the importance of communication between the lawyer and the client. What happens when communication breaks down?
– Caine references “the harm we’re doing to our clients and to the public.” What does he mean by harm to the public?

A Lawyer’s View of Being a Litigant

Robert S. Caine
Letter, New York Law Journal (May 16, 1994), at 2

It’s different being a litigant than a lawyer. I know. I am both. As a litigant, you’re often subjected to indignities and lack of consideration by lawyers and judges.

Try calling your attorney to obtain information you deem important, and experience responses from his receptionist or secretary, such as “He’s in court,” “He’s on vacation this week,” “He’s in a deposition,” “He’s out to lunch,” “He’s at a closing,” “He’s moving today,” “He’s on the phone,” “He’s in conference,” or “He’s on trial.” You strongly infer from her/his statements that the lawyer is actually in the office. Call back later and receive the same responses. And try the next day, the day after that, and the day after that – all without success.

Experience for yourself the ultimate callback from your lawyer, such as, “I’m just a single practitioner,” “I was moving,” “I was involved in so-and-so’s campaign,” “You’re driving me crazy leaving all those messages,” “That’s the system,” “I was very busy with priority matters,” “I was in court all day,” or “I had nothing to tell you.” Hear your lawyer tell you that the judge went on vacation without deciding your critical matter, when the judge could have decided it quickly and properly in your favor. Or, a judge who routinely grants – or denies – stays without properly considering the papers. Or, a judge who is rude to or short-tempered with lawyers or litigants.

Then, too, listen carefully as your lawyer tells you that it’s not his fault, as he tried to get the other lawyer on the telephone but he wasn’t in; that he has called the other lawyer 10 times without success; that the other lawyer called him aback yesterday, just after he left the office, and the other lawyer’s not in now. One of the lawyers is at fault.

Hear that your “million-dollar deal” is being held up by telephone tag and failure of your lawyer to attend to your matter because he has more pressing affairs to take care of. And you’re paying for that telephone tag! (What ever happened to making telephone conference call appointments, like business people do?)

There’s something wrong with us lawyers – and judges, too – when we can’t realize the harm we’re doing to our clients and to the public, the heartache and frustration and pain we cause to others because we fail to attend civilly and promptly to the needs of others for communication. If we can’t take care of a client properly, which includes communication with the client, we shouldn’t accept the retainer. No excuses are acceptable, except honest illness, death or other real emergencies. In other businesses, if you don’t deliver properly and courteously, you don’t get paid or you lose the customer, or both. Why don’t we at a minimum tell our secretaries or paralegals to call the client, explain what the delay is, determine what the client’s concerns are, and give and receive messages? And if judges don’t have the will to deal more slowly and carefully with some people than others, they should step aside in favor of others who can and will. Speed and numbers of cases are not all the public wants and deserves.

Whether we like it or not, clients become captives of a lawyer-oriented system from which they cannot extricate themselves. Clients can’t just hang up in disgust and take their matters to the next lawyer in the Yellow Pages. It doesn’t work like that. Many know it and play upon it.

Trust me. If we don’t clean up our act, someone’s going to do it for us, and we will deserve what happens. Be careful, lest an overhaul kills our goose and our golden egg.