Today’s article is for both lawyers in independent practice and in-house counsel. Here I talk about the 5 fundamental questions you, as a lawyer, should ask the client who has approached you with a new litigation.
You might have been conditioned to believe that as a lawyer, it is your job to know the answers. However, a good lawyer should know the right questions to ask, rather than knowing answers to all the questions.
Usually you would receive a phone call from a client, either a new one or an existing one, wanting to meet you “to file a case“. In such a scenario, its best to take a short briefing of only headline points, over telephone to get an idea about the subject matter, so that you can be prepared beforehand to advice your client when he meets you.
The first meeting is crucial, especially if you are meeting a new client. You need to make the right impression so that he trusts you enough to hand over the files to you. Even if he is a regular client, you still need to impress him, ‘cos chances are that he has many options to choose from. So to impress the client, a lawyer should know the right questions to ask.
In this article, I am going to cover the 5 most important questions which you, as a lawyer or in-house counsel, should ask your client or the business team, especially in relation to a new litigation, so that you get all the requisite information, the client is happy and the matter is handled well right from the get go.
Let’s get started.
A complete factual background
One of the first questions a lawyer should ask the client is about the factual background.
In my experience, most people are bad at briefing their lawyer about facts. They tend to start with the agreement that is in dispute, without giving a context about how that agreement works. They also feel that they don’t need to talk about every communication or detail since they are handing over the entire file to the lawyer and it’s his job to go through it entirely and uncover the facts himself.
This could be bad for you, since you might miss important implication of a document if not pointed out to you. You would know that in long trail emails, many things which have been said earlier, are not said again. There could be a gap in your understanding if you don’t know about the unsaid stuff. Similarly, the client may have prepared an excel sheet of outstanding money to be recovered, which needs explanation. So, how do you ensure that you get the full factual background from your client?
Here are some questions to begin with. I have taken an example of franchisee agreement to illustrate –
- I understand this is a franchisee agreement, but please explain how does the business arrangement under this agreement work? This is to get a full understanding of the contract
- What are the other types of agreements that your company enters into for similar business arrangements? This is to get a full understanding of the way your client does business.
- Is there a reason why you chose to do a franchisee agreement with this party? This is to understand why your client signs one type of contract with one party and another type with another.
- How do you choose your franchise? This is to understand the factors that go behind choosing the party.
- What documents do you take from your franchise at the time of executing the agreement? This is to check for alternate address in case the address on contract is no more used by the party and also to check constitution eg partnership firm/sole proprietorship/company.
- How does the payment mechanism work? This is to understand how money travels from one side to the other.
- Is there a concept of credit? This is to understand why there is money to be recovered.
- Do you take any security? This is to advise client if he should utlise the same to recover some money or if he has already done so, whether the process was as per the contract.
Once you understand the underlying contract fully, move on to the story of the present dispute. Ask them to begin from the beginning. Usually, the client tends to miss out on information because they feel they are not important. However, they may very well be crucial for the case. So, go as basic as possible.
I have learnt a very useful trick of extracting facts from one of my bosses. Whenever people would come to him to brief him on something, he would always steer the briefing session. If the client started narrating from midway, he would stop them and say, “Please start from the very basic. I am very slow in my understanding. I take time to grasp what you are saying.” Everyone would laugh at the statement, but they got the point. He would keep saying this till the client actually began from the very beginning.
Choose your own funny statement but make sure the client tells you everything right from the beginning, including all relevant background about the business.
Documents to prove the facts
The next question a lawyer should ask the client is “How do you prove what you are saying?“
Once you have heard the whole story, go back to it again. Now is the time to look at the documents. Ask the client to identify and hand over the document required to prove each and every statement that he is making.
When clients make statements like “We wrote many reminders emails but received no response”, don’t take it at face value. Ask them to show you every piece of email and cross check if there were really no response.
When they say, “we sent them the goods but haven’t received payment”, ask to see the proof of dispatch and delivery.
There’s always two sides to the story, so try to understand the story of the other side too. It will work to your advantage in preparing your case.
Exact outcome desired by the client
Next question to ask your client is – “What do you want from them?”
Usually the answer would be ‘X amount of money plus interest @18% per annum till date of realization’. Or ‘to stop the other side from doing a certain act’. Or ‘to put pressure on the other side to achieve a certain outcome’.
Whatever the answer is, ask more questions on it.
Are they willing to settle for lesser amount if that means finishing the dispute in mediation without going to court?
Are they willing to sit across the negotiation table and come to a mutual understanding?
Are they willing to wait for X number of years fighting the case or do they want to recover as much money as they can right now?
It might sound counter-productive for an independent practising lawyer to even offer these alternatives, but believe me when I say, this will increase your credibility as a lawyer before your clients. They will always prefer you because they know that you will always give them the right advice and show the right path. They will recommend you to others basis this one quality only.
Every client values one trait in their lawyers – intellectual honesty. Be that lawyer who is ‘known’ to be honest in their advice.
Loopholes in the case
Next, a lawyer should ask his client questions to figure out if there are any loopholes or negatives in the case.
The client will be eager to convince you about the robustness of the case. It is human nature to think that they are always in the right and that they never made any mistake.
It’s your job as their lawyer to peel away every layer of the statement that your client is making. What may appear as ‘right’ to them, might have legal implications when you look at it from a lawyer’s lens. Point those out to them gently.
In all my years of briefing other advocates and senior counsel, I have found very few of them who would be gentle in pointing out the flaws of my case. Usually, they throw at you like a matter-of-fact statement, making you feel unhappy that your precious case has a negative side.
Be that lawyer who guides his client through loopholes to figure out how to present the case so that the negative is not visible; or come up with solutions to beat it. That’s the primary job of a lawyer and everyone does it; what I want to advice you here is the way you do it.
You don’t have to show off superior knowledge.
You don’t have to show off your authority or seniority.
No one, not even the CFO or CEO of a company likes to be told what they did was wrong.
Don’t just point out the problem, offer the solution.
Be empathetic and your client will love you for understanding.
Mapping of jurisdiction
Whether you are filing a case or you are defending a case already filed against your client, jurisdiction is a crucial aspect to take note of right away.
If a case has been filed against your client, try and see if you can take a preliminary plea of jurisdiction, which the Court might deal with first.
If you have to file a case and the contract is not clear about jurisdiction, you would have to decide one. It’s always a good idea to sit with the client, map out the territory where each of the causes of action has arisen and take a call on the jurisdiction. It will also help you figure out before which Bench the case might land up and strategise about the case.
Do let me know in the comments, if you ask any other questions to your client when you first receive a case file. What other points do you think, a lawyer must discuss with the client before taking on a litigation?
How you interact with a client is a very crucial skill to develop if you want to be a successful lawyer, especially in an independent practice. You may want to read this article if you want to find out more about the skills to be a successful lawyer.
Hope you enjoyed reading this article.