What is it all going to cost…?
Costs… one of those issue that (I think) a lot of us find difficult to deal with. Talking about money – especially when it is such a direct measure of your worth – is not easy. After all, there is good that reason barristers don’t discuss fees and leave that to their clerks! How many of us would prefer to run for the hills or shudder when having to discuss costs estimates, or that costs have crept over the estimate and a difficult conversation needs to be had?
However, being clear about costs is one of the most important aspects of our day-to-day jobs and an area which is at the core of most client complaints. Our firms often measure our performance (and whether we are ready for promotion) by reference to fee targets and how much we bill our clients each year. It is also a good measure of how we are doing against our “competitors”, and at its very core, the way our firms can afford to stay afloat, pay us and profit.
So, why it is such a difficult topic to approach for many of us?
For those that deal with private clients, in my experience, costs can be a sensitive topic. How many times have you provided a costs estimate with your clients sitting across the table from you, whether at the outset of an instruction or once you have to show how much it will cost to proceed to trial, to be met with an overwhelming look of shock and surprise?
Some of it arises from our clients not understanding the amount of work that goes into representing them. The response of “surely one letter can’t cost that much” must be familiar to any client-facing solicitor.
It often comes back to something more fundamental, which is a lack of understanding in the process and work involved, particularly when it comes to preparing wills, dealing with probate, and residential conveyancing. How many clients consider these to be straightforward jobs which they could do themselves without understanding the dire consequences when something goes wrong. My guess is that many testators (or at least their family beneficiaries) regret penny pinching on a will instruction and seeking to get it done at least cost when they see the full costs of High Court trial over a disputed will! Don’t even get me started on homemade wills…
On occasion in the past, clients that considered my work to be straightforward have gone off to start the process themselves, only to return very quickly when they realise it isn’t what they thought. Sometimes, when it comes to cost-conscious clients who frequently engage via phone or email, it appears that they fail to recognise the value of their interaction time, resulting in an unintended increase in their bills.
With disputes arising after death, litigation is rarely ever simple. It is one of the fascinating things that I love in our area of work. For those of you that know me, something you may gather from these columns is that I really enjoy chatting about cases and their often-unique facts. We are very blessed to have a job where we can carefully examine problems and sometimes find new and creative solutions to solve them. What could be better? There is rarely a black and white case (despite what our opponents may try to argue). The very nature of what we do means that we often live in the grey, dealing with issues at the edge of what is contained in legislation, certainly in a world of contested facts and trying to convince the courts that our interpretation and solution is right.
For our clients, even if they are sophisticated and are used to engaging professionals in various aspects of their lives, probate litigation (often involving disputes with close family members) is an incredibly stressful process. Even when we are not considering ground-breaking arguments, such as claims arising for reasonable financial provision, proprietary estoppel, or constructive/resulting trusts, no claim is ever a sure thing. Remember that a decision in equity is measured by the length of the Chancellor’s foot! Trying to predict an outcome becomes even more hazardous when the case turns on lay witness evidence, often given by self-interested individuals.
However, when our clients feel wronged and want to pursue their claim, they must weigh-up the costs of pursuing matters versus the cost of them not doing so. This changes depending on the motivations involved but can include the years of regret in not acting.
Thankfully, where costs are involved, there are several options to help our clients when it comes to funding, particularly when the merits of their claim feel good. That said, our clients do not often fully comprehend the journey they are about to undertake (and one suspects many might not start out if they truly understood the monetary and human cost involved in taking a dispute to trial). Sadly, many think the legal process is something like what they have seen in Hollywood films.
Unfortunately, for our clients the real cost of pursuing litigation is not just financial. The likelihood is that, for those invested, the toll will impact their everyday lives. How could it not when the injustice they are fighting to correct will weigh on their minds a lot and often involves those with whom we have our closest relationships, such as our parents, children, siblings, wider family members, and friends. This isn’t something they walk away from when they hang up the phone with us or send on an email. Our clients often underestimate the emotional cost to them and their families personally, particularly when they don’t fully appreciate (or even if they do, the reality is very different from the theory) having to deal with constant correspondence from us and our opponents, all while having to relive past events.
Are they ready for the sleepless nights?
Are they ready to have to put in some work outside of work and into the weekends, when they could be doing things that they love or want to do?
Are they prepared for the pressure they will get from others in the family or friends not to take matters further?
Are they ready to spend costs on lawyers’ fees, rather than on things they could do, such as go on holiday etc.?
The impact of litigation on our clients’ wellbeing and mental health is immense and should not be understated. We can play a real part in supporting them, but we must remain focused on the merits of the claim and acting in their best interests. It is all too common that our clients come to us with a headstrong attitude, but then don’t appreciate that it could be years, in some case decades, for their case to be resolved, if neither party is willing to compromise. Even then, they may not achieve the result that they want (indeed such a result might not be legally possible). I find it very hard to see families split down the middle, with little hope of reconciling. Done the wrong way, litigation, and the process we take our clients through, can add fuel to the fire rather than calm things down. Often, early use of ADR – particularly mediation – is a better option than trial.
One question posed at a conference I recently attended: would you have your clients sitting down with the opposition, such as their mum, dad, sister, brother, in an opening session of a mediation? Would this be of benefit or harm the day? My immediate reaction was that that in many cases this would be counterproductive, particularly when clients have often got themselves into an entrenched position, and sitting in a room together for the first time in many months or years would cause more harm than good. It risks setting the wrong tone for a day. Some opponents, and mediators (although less so these days), insist on an opening session. I would love to hear from you, particularly if you disagree. I am open to having my opinion changed.
Going back to financial costs… I am not afraid to admit that costs is something that has (and continues) to take me a lot to grapple with, and I will work on for the rest of my career. Maybe it could be that these types of skills could be worked into the exams we need to take to qualify. Certainly, I know that my current firm spends a considerable amount of time making sure that all junior lawyers know how to deal with costs and have difficult conversations. There is, however, no quick answer, or one size fits all, to what is the key to success with clients when it comes to cost. You will each have to find your own way to deal with this but, as is often the case in other walks of life, an open conversation at the earliest stage is always best.
For me, I certainly prefer the approach of being up front and providing a breakdown, so that the client can see the work required, and can go through and see the work completed when each invoice is raised. I also spend the time to make sure that clients have details early on of the best-case and worst-case scenario, and we go through this so they understand that the estimates may change depending on what happens as matters progress.
However, I would emphasise that in my experience, having conversations early on, rather than springing costs increases on them out of the blue or after the event, helps minimise the risk of any issues arising, and helps my clients feel in control, particularly if you must increase the costs or show they are outside of scope/estimate. Engaging in these conversations regularly, rather than postponing them until later, proves to be much simpler. This is particularly crucial when clients experience unfavourable outcomes, losses, or even after achieving victories, as it prompts them to question the value and extent of the associated costs.
A final thought to leave you with: Some of the toughest discussions I have had around costs are with those who I would consider very (very) wealthy when I was based in the Caribbean. Ironic for many of them, as once resolved, they had the money in the bank to pay straight over, but would also be the ones who would go through bills line by line and be the ones hardest to pin down in terms of paying invoices. Conversely, some of my clients who insist on paying monthly, and even ask for invoices to be raised, have very little.