Author Richard Solomon is a conflicts and crisis management lawyer with 50 years of experience in business development, antitrust and franchise law, management counseling and dispute resolution including trials and crisis management.
In almost 50 years of practice I have managed to alienate a lot of people. Face it. Some people are not qualified to be my client. Insane, you say. For you it would be insane, but for me it works perfectly.
Over the years I created my own model of practice. I did not spend any time in a large law firm. I hung out my shingle after leaving in house corporate practice with very large companies, went looking for work and got very lucky. The harder you work the smarter you get and the better you seem. My model worked. I didn’t promise people things that I probably could not achieve. Even when hungry, I turned down work that should have been turned down. It has always been more than money for me. I wanted (still want) a reputation for professional excellence and I worked very hard to get it.
For many years it was difficult trial work. I love it. But now I try fewer cases. After almost 50 years people want my insights based on what I have learned in that time. They want me to show them how to solve problems without having to try lawsuits as the only approach. I am enjoying the problem solver role, the expert role, the collaborator role and the analyst role. Life is still a lot of fun. I will probably never quit.
Most law firms feel blessed by long client lists and heavy foot billing methods. The law factory approach has been the model for most large law firms for many decades. They will put enough lawyers on any matter to do everything that could possibly be done. Sometimes the spend the project into the ground approach may exhaust the opposition. Large clients like to think they can just buy the pot, outspend everyone and win every time, regardless of the merits. That was always the General Motors approach –we don’t have to care and we are always right because no one can afford to be as right as we can afford to be. That gravy train is slowing rapidly. Clients are looking at those bills and shaking their heads. Clients are looking more carefully for talent than for sheer weight. Talent isn’t cheap, but the file jobbing approach to billing for legal work is on the way out. The big firms that lived on excessive billing are now splitting up and in some cases just going out of business.
Fortunately for me, most of the clients who seek me out would prefer a best solution approach, a netting out of potentialities and prioritizing them for risk, expense, impact upon other collateral interests. My clients are usually spending their own money, not that of hordes of anonymous shareholders. They don’t always know that’s what they want when they first come to see me. When they first walk through the door they want to be reassured that they are right and that they will prevail – whatever prevail means. I could have a lot more business if I played that game.
I have reservations about giving clients a line of misleading salesmanship just to get retained. Many times the client is not as “right” as he thinks he is, and many times that is somewhat obvious in the beginning of the relationship. Often ancillary matters negatively impact prospects for a good result. These need to be identified and taken into account.
Rather than tell a potential client that I agree with him, I tell him that I am going to be a “devil’s advocate” and ask a lot of challenging questions to see to what extent his view of things and his expectations can withstand cross examination. That’s about as nice as I am capable of being. Accordingly, many potential clients go off and seek a more compliant resource. While I would very much appreciate being retained, it is better that someone who cannot or will not tolerate challenge go elsewhere.
I handle mainly crisis, bet the company situations and groups of people with common life threatening business problems. Few people understand that a client in crisis is rarely without some responsibility for the fight. In these situations no one is entirely without blame. If the boss cannot accept qualifications to any endorsement of his position, I am really not the right person to be his lawyer. I am not a potted palm and I have been around too many blocks to accept stories on their first telling. The guy who has to be “right” will pay a lot more elsewhere, and very often he will in the end have spent that money for nothing. I strongly believe the Rupert Murdock debacle is a product of simple client arrogance. Maybe he has so much money that nothing matters and no result can affect him adversely. He is certainly conducting his response to the hacking accusations as though he had divine immunity. His son is an even worse example of how not to do this. But even if the Murdocks can afford to mishandle everything, most people cannot. His lawyers follow anything he says without question. If there were effective questioning either things would go better for them or they would be cashiered. I suspect they believe they would be cashiered and just go along for the sake of the fees. The Murdock spectacle has to be the worst example of crisis management this year. It should be a case study on the subject. I know there will be at least one book on the story and maybe a movie, like the Enron debacle. At least the public financial harm in the Murdock matters is not as substantial.
Your lawyer has to be able to tell you the hard news and not get fired. If your lawyer is more worried about getting paid than about doing the best possible job for you, you are defeating your own cause with a very negative attitude. You can always get a second opinion to be sure you are not missing anything. I can guarantee you that you would much rather hear bad news in private than in court before the public, a jury or in a written court opinion about what is wrong with you. Of course it is better to provide a spoon of sugar to help the medicine go down, but this is a world where people have to grow up and to do it more quickly. The digital age has accelerated the speed of calamity. Reality is an imperative in what I do. Your pastor can punch your card if that is what you need.
In the not too distant past a company that thought they just had to be represented by a large Wall Street law firm instead of by the people who prevailed in the nearly identical case a few years before, paid $ 16,000,000 to a Wall Street firm to lose. It was worse than that. They charged $ 16,000,000 and then told the client they couldn’t win. Even worse, they had filed suit before they knew what to expect. To me running up a $ 16,000,000 tab and then telling the client you can’t do anything for him is a description of incompetence. Competent pre filing due diligence on your client’s case really should prevent such a travesty. Maybe if the client had hired the folks who knew how to try such cases he would have been better off. My team won the nearly identical case three years earlier against the same Defendants for around $ 1,000,000. My clients told this client about our success and recommended that they come see us. They didn’t. An army of upper crust honor graduates is surprisingly ineffective in a crisis.
My client to this day tells everyone that he almost didn’t hire me because I had very different and contrary views about the situation from the views his lawyers had been telling him. They had missed their very best strategic position and had focused upon a technical rather than a real theory of recovery. The opposition had hired four of the biggest firms in Texas to represent them. The opposition was used to “buying the pot”, so finding their Achilles Heel was not easy. But we found it and the big guys cried uncle instead of us. Now my client follows his statement about almost not hiring me with a lot of praise. His is one of the posts on http://www.franchiseremedies.com/what_others_say_about_richard_solomon.htm.
There are occasions when someone really is on the right side of a conflict, and the wonder is that they are in the fight at all. When it seems that my client is that correct and that the opposition is that incorrect, unless I know the client for many years, I am still skeptical. If I can’t find the hole in the boat, the boat probably doesn’t have a hole in it, or at least not a big one.
I have been told many times that “I’m not going to let a damned lawyer tell me how to run my business.” On the other hand, if I see you headed for a fall, based on what I have seen others do to their detriment, I can’t just sit there and smile and salute. My guts won’t let me do that. I failed to get a good client just a week ago on just that kind of scenario. The potential client told me the plan going forward and I have had a few clients in the past go down in flames doing things like that. When I told her that if she retained me I was going to ask her to rethink that plan, I was dead meat. She had already announced her plan to everyone and was not going to reconsider. I could see on her face that I was about to be shown the door, but no one in her organization was going to tell her anything that she might consider questioning her “authority” as the owner of the company. I am reasonably certain her company will fail within eighteen months if she goes forward with that plan, and I could not salute it. On the way out I asked her one more time to “test market” the plan before betting the farm on it. The look on her face was extremely combative. As one friend often tells me, “You are a good lawyer but a bad businessman.” So be it.
Now had I not insisted on being up front about the need to cross examine every investment plan before going forward with it, I probably would have been retained. I have an awful lot of experience representing clients in her business. The plan would still have failed. I’m a lawyer, not a magician. She would only have been upset with me later anyway. She might even have blamed me then for not having spoken up earlier. People are like that. How does one finesse that? I am certain there are folks who can do that. It takes a pretense that you really think their idea is great and faking it until your relationship with the client is on firmer ground. However, when the drop dead date is staring you in the face, you don’t have time for that. Her plan was going to be put into effect almost immediately and there were three other conflict issues that were about to come to a head within a month or so. Things are closing in on her and she is about to implode her company. Sadly, some other law firm will smile and hold her hand right into oblivion. The rough justice will be that they will go out holding a rather large and uncollectible receivable. When the bad news does roost she will owe them a lot of money that she will refuse to pay.
A long time ago someone I respect told me “Bad news can’t wait.” I have seen a lot of times when bad news really couldn’t wait and no one had the guts to say what it was. I have always spoken up. Most of the time, although I pissed off everyone in the room, I was later thanked for it.
Part of the issue may be that clients often wait until it is the last minute and they have already gone out on some limb before they call me in. That’s when things are really tough. I published an article about what not to do when bad things happen. My first recommendation is to say and do absolutely nothing until you really do know what all the facts are. But people seem never to do that. They are always into denial of wrongdoing before they are aware of whether there really have been some shenanigans on the part of their company. It’s tough to stuff shit back into the horse. There is no harm in saying that you have nothing to say now and that you may have something to say when you are certain of what the facts are.
Being the owner of a company does not mean you know everything that is going on. Sometimes it turns out that you really did know about bad stuff. Sometimes it turns out that someone you might want to protect has gotten the company into a jam and you don’t yet know about it. That stuff will come out. Don’t make a fool of yourself by ignorantly denying wrongdoing when you aren’t certain what really happened.
The standard P R firm advice is to make immediate self justification statements in response to any accusations. That is really nonsense. If you want credibility you need to make responsible statements. Claiming to be right before you could possibly know the facts and have sorted them out is not responsible or credible. Why do that to yourself?
When you have taken a public enforcement position on a defective contract that seems facially to agree with you but in reality does not give you the rights and prerogatives you think it does, be prepared to spend a lot more money than you really had to spend in getting to a livable result. When the source of the bad news is someone who used to be with your company and knows the truth from the inside, deniability may not be just a matter of hiring a PR firm or a nasty lawyer. Talk is usually not cheap in these situations. Everyone, no matter how much of a good guy he may be (or think he is), has enemies.
It is dangerous to rely upon advice from people who were on watch when the bad conduct in question took place. They are usually on the defensive about it and for that reason less reliable. Get a fresh outside look before you take a position. Tell the fresh outside resource that you really do want to know the news, good or bad, and that you promise to deal with it realistically, whatever it may turn out to be. You will never regret having done that.
I know these admonitions seem simplistic. Truth usually is direct and simple. The amazing thing is that these obvious more successful approaches are so seldom used. If they seem so obvious to you when you read this, you might ask why the more harmful approaches are so often adopted. I think the answer may be that when you are the target of an immediate threat, your reflexes engage more intensely than your ability to be logical. In many instances it is ego driven.
Educating clients is dangerous stuff in moments of emergency. I think I am getting better at it. However I still get shown the door more often than I would like. This is the best mode of emergency representation, however, and I do not intend to change it. Clients in really serious difficulty need to grow up quickly and swallow fear. Fear never drives successful tactics and strategy. If you don’t start by sorting out the truths that are in play you will spend a lot more money for a much less favorable result.