Part I: Winning Clients
As a member of the litigation finance community, I’ve had the opportunity to work with a varied cross-section of attorneys and one truth has emerged: business development is a pressure every practitioner is facing. Perhaps your New Year’s Resolution this year will include improving the efficacy of your business development efforts. If so, this series is for you. In Part I of this series, I’ll share my observations about what I’ve seen work in winning business. In Part II, I’ll share my thoughts on the related skill of how to best present your client’s case to a funder.
So, what does a litigation funder know about winning clients? While most claimholders come to Lake Whillans with their lawyers already in place, a significant minority choose to explore financing with us before they have chosen counsel or wish to upgrade their counsel. In both instances, securing financing allows claimholders to select from a wider array of attorneys. In these instances, I’ve been privy to the considerations given by claimholders to the attorney selection process. Here are 5 tips for practitioners that I have seen work in winning over clients:
Getting to know the facts of a claimholder’s case at a high level and at least some of the salient details (for example, the key terms of the principal contract) is important both in gaining credibility with the client and of course, relevant to forming a thoughtful opinion (see #2). In some cases, initial research on the major legal issues might also be appropriate and go a long way to winning over a claimholder who may be aware of the issues, but uncertain about the law.
Risk-adverse lawyers who are reluctant to commit to an initial view or caveat their advice too heavily raise the risk of losing the client. The claimholder wants an honest assessment of how you see their claim. What claims might they have? What are the major legal issues? What will be the theory of damages? In giving your views, you also want to convey that you believe in their case. If you don’t, perhaps you should pass on the representation or at least skip straight to tip 3.
While claimholders want lawyers who are enthusiastic about their case, they also want and appreciate candor. They know (or should know) that their case isn’t perfect and want to know what challenges they are likely to face before they commit to litigation. As a bonus, they will be impressed if you have formed initial views on a strategy to overcome those issues and increase their odds of success.
This tip has to be applied after gauging the potential client’s legal acumen, which can vary widely. But, no matter what their depth of legal understanding, every client has something to learn from you. Inform them of the relevant law. Point out where the law is uncertain. Explain the procedural process to those who don’t know the difference between a 12(b)(6) motion and motion for summary judgment. Most importantly, stop, take questions, and listen. Their questions are as important as your answers. Establish early on that they can count on your ability to communicate effectively.
The answer to this question may seem obvious. Win, of course! Assuming this answer, many practitioners fail to ask this question and miss an opportunity to set objectives that match the client’s expectations. Does the client see a way for the companies to do business together as a way of resolving the dispute? Is the client willing to settle or is public vindication via a trial the objective? Is it the dollar amount or the time to resolution that is most important? Sending the signal that your aim is their aim is important to winning their trust and accordingly, their business.
Good luck using these tips! Once you are representing a client, you and your client may be well served by using litigation funding. Your client may like the idea of hedging risk and directing its capital to more efficient uses than litigation. You may like the guarantee that your fees will be paid in full and on time. And both of you surely benefit when the capital available to litigate the case is sufficient to give the matter its best chance for success. In Part II, I’ll share my views on how best to help your client obtain litigation financing.
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