Law and Litigation July 21, 2010, 2:51PM EST

Help Your Attorney Help You

Even the sharpest lawyers can't do justice to your case without your full cooperation throughout. Two commercial trial attorneys explain

By Matthew A. Taylor and Matthew M. Ryan

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In our years as commercial trial lawyers, we've encountered clients of every stripe and character. Not surprisingly, the representation proceeds much more smoothly when the client cooperates and actively engages in the matter. Allow us to explain what makes the difference between a good and bad client.

Good clients reveal everything about the case, warts and all. During the initial consultation and throughout the life of the litigation, clients need to speak candidly to their counsel and not outsmart themselves by telling their lawyer what they think the lawyer wants to hear. While we certainly want you to emphasize and focus on the most relevant and helpful information, your cause will ultimately suffer if you censor yourself. Always err on the side of disclosing information, even the embarrassing and unflattering variety. Your attorneys need to hear it in order to prepare for its disclosure and minimize any negative consequences.

Good clients listen to everything about the case. Your attorney needs to speak candidly to you and be comfortable advising you where you went wrong. A good client remains receptive to the constructive criticism and the tough-love feedback. Moreover, a good client is open to whatever instructions the attorney might give. For instance, responding to discovery requests might be cumbersome and embarrassing, but a good client listens to and follows counsel's advice on which documents and records to collect.

Who Are the Key Employees?

Good clients introduce us to the necessary players. Who made the decisions at issue in the lawsuit? For example, when a contract negotiation goes sour and litigation ensues, your attorney needs to talk to the people who actually sat at the bargaining table. Who prepared the negotiators? Which employees compiled materials for the negotiation? Who originally created those materials? There are also many administrative employees your attorney needs to meet. For instance, presuming you communicate via e-mail at work, you should identify who runs the client's IT department. Your attorney needs to talk to your IT director to ensure that necessary and relevant e-documents are retained and easily reproduced.

Good clients install litigation holds. A litigation hold requires an organization to preserve data relating to a specific legal action. Once you can reasonably anticipate litigation, even before a complaint is actually filed, you must take reasonable, good faith measures to preserve evidence, including documents and electronically stored information relevant to the litigation. Severe consequences, including monetary or even evidentiary sanctions, can result from failing to preserve this evidence. For example, a court could instruct a jury that an adverse inference may be drawn if the judge is convinced the client has failed to preserve relevant evidence. Document preservation may mean laying out some cash, but the penalties of not doing so far exceed the cost.

Good clients understand the territory. For better or worse, litigation is a protracted and expensive process (perhaps to encourage all parties to settle early and cut their losses). Your attorneys will always strive to keep your lawsuit moving expeditiously through the legal system. But even with these best practices, your lawsuit might still take years to resolve. Trial dates are often rescheduled. Civil suits in particular tend to drag. An individual judge might have hundreds of lawsuits on her docket. Her time is at a premium, which makes it a challenge for your attorney to schedule a hearing, conference, or trial with her. The opposing side is also entitled to develop and prepare its side of the argument. Conflicts and emergencies—for the parties, the attorneys, and the court—arise frequently, and a good client accepts it when a January trial date unexpectedly moves to March or June.

Other Side of the Coin

Bad clients fail to tell their attorney what a "win" means to them. As trial lawyers, we train and prepare to exhaust all steps en route to a successful trial and, if necessary, a successful appeal.