How to Win Repeat Business: Ten Practical Tips for Litigators

Litigators spend countless hours trying to position themselves to land a case with a large corporate client. As hard as that process may seem, getting hired is only the beginning. To win repeat business with these clients—presumably the real goal of such marketing efforts—firms must remain vigilant about how they present themselves to the client long after they are hired. Based on my years of experience hiring outside litigators, I offer 10 tips to increase your chances of winning repeat business.

Learn the client’s expectations up front and meet them. All clients have their idiosyncrasies and expectations. Admittedly, clients often do not do the best job of communicating them to firms. However, firms are often just as guilty of not understanding a client’s expectations up front.

At the start of any new firm relationship, I provide a short memorandum laying out both substantive expectations and billing practices. I am always impressed when a firm not only reads but then proceeds to immediately comply with my memorandum. Likewise, I am disappointed when firms appear to have not even read the memorandum. Or, if they have read it, they immediately forget what they just read.

When client expectations are not clear at the outset, one of the most impressive ways to kick off the relationship is to simply ask. This includes asking about the client’s general case management, work product, billing policies, and communication preferences. For example, some clients may want to review every pleading or discovery response before you file or serve. Others may have a specific process for invoices. Some may require submission of any formal work product, such as research memorandums, to a document management system for subsequent retrieval. Asking up front about the client’s expectations shows the firm wants to make the client’s life easier and starts the relationship off on the right foot.

I once witnessed a firm routinely disregard our billing guidelines. This required our staff to perform a manual process to ensure the invoices were paid. Adding tasks to the client staff’s otherwise busy schedule is not a thumb on the scale in favor of repeat work.

If you cannot meet the client’s expectations for whatever reason, be candid and do not ignore the problem. That conversation—after the firm has reviewed policies or procedures and immediately flagged any issues—is far better than one that takes place after a firm has simply ignored those policies for months, requiring the client to approach the firm about the issue. Clients are more inclined to accommodate a firm if that firm immediately raises the issue. Here, it is better to get permission first as opposed to seeking forgiveness later.

Do good work. This one is obvious. A firm that does good work on a case sets the firm up to receive more work. Good work doesn’t always mean a complete victory. Motions and cases are often lost notwithstanding a firm’s best efforts. Indeed, when the work product is at a particularly high level, a client sometimes will overlook deficiencies in other areas.

Earn the client’s trust. One of the best ways to ensure repeat work is earning the client’s trust. Being able to trust that a firm will handle a matter competently is a tremendous relief to an in-house counsel. This means meeting deadlines, handling smaller issues without having to check in, and following through on commitments.

It helps—particularly early in the relationship—to reinforce the notion that you can be trusted by making a conscious effort to demonstrate your trustworthiness. Examples include sending timely copies of filed pleadings to the client, confirming that a task has been completed, and sending quick notes letting the client know you did what was expected. Taking these small steps ensures that over time the client trusts that you are doing what you should be doing.

Clients understand that mistakes sometimes happen. When they do, acknowledge them. Be transparent with the client on why it occurred and how you will ensure it does not happen again. Provided these mistakes are not a regular occurrence, handling them this way will build trust because it shows you will bring issues to the attention of the client as needed and work toward making sure they do not happen again. On the other hand, one of the best ways to lose a client’s trust is to hide your mistakes.

This same principle applies to any unexpected or negative results. When something unforeseen happens, tell the client quickly but also propose recommendations for next steps. Downplaying, delaying, or concealing these results from the client does not help build trust. Acknowledging and addressing them immediately does.

Put the best player in the game. Who is the best player? Sometimes it isn’t the most senior or originating partner. Instead, it might be that rock star associate who has earned my trust (see the third tip) and happens to bill at a much lower rate. Or it might be the attorney who just “clicks” with the judge. Whoever that individual is should be in the game.

I once worked for one of the most successful litigators in Texas. Was he one of the best litigators I ever saw? He was definitely in the mix. But there was something that separated him from the rest of the pack: He constantly put the “best player” in and gave others opportunities that he could have easily kept for himself. On his cases, junior associates routinely handled depositions and hearings, senior associates handled openings at trial, and junior partners handled voir dire. Top litigators, by their very nature, often think they can and should handle everything themselves. It is rare and stands out when you find one who also knows when to take a step back.

One of the most awkward conversations that an in-house counsel has to have with a senior partner is when another lawyer on the team should handle a particular hearing, deposition, or trial, but the senior partner doesn’t realize it. Further, if it is an obvious choice and the attorney did not suggest it or otherwise is resistant, that can cause a client to question the senior partner’s judgment when it comes to the case more generally.

Embrace pushback. Firms are sometimes afraid to push back on any ideas, suggestions, or directives from the client. I want push back. In fact, I’ve hired your firm for your expertise. If you just agree with everything I suggest, it makes me question whether hiring you actually adds any value.

In private practice, I worked closely with a phenomenal attorney with whom I would often get in vigorous, heated debates regarding case strategy. Occasionally, when those debates occurred late at night, my family would hear some of the back-and-forth and be concerned that I was on the verge of burning that relationship. My response? That is normal, productive behavior—at least in terms of our relationship.

Some of the best results and ideas in cases I’ve been involved in have come from vigorous, heated debates with my outside counsel. Everyone should be willing to take pushback, test their respective positions, and have thick skin. The client is almost always better for it.

Be easy to work with and lessen the demands you are putting on the client’s time. The life of an in-house counsel can be busy and demanding, albeit in different ways from private practice. Often, one of the biggest challenges is ensuring time is spent practicing law rather than managing people and processes.

If a firm is difficult to work with, and by extension necessitates time spent managing administrative tasks, that can be frustrating. This can run the gauntlet from basic tasks such as submitting bills to more important tasks like making requests of business principals.

One of the best things outside counsel can do is streamline the requests to in-house counsel and business principals to only those that are absolutely necessary. One request for three different things is better than three separate requests. Constantly pinging for information and documents in a haphazard manner puts an administrative burden on the in-house counsel, requiring closer management of the flow of those requests to the business principals. On the other hand, if a firm can limit requests to only those that are truly necessary, the in-house counsel will be more comfortable allowing direct, unsupervised interaction with the business principals. This saves considerable time. When it comes time to engage litigation counsel on new matters, you remember the firms that made your life easier and may never reach consideration of those that don’t.

Discuss openly and plan ahead for cost considerations. Costs are a major consideration for the vast majority of clients. I am surprised at how often firms completely ignore costs when they pitch for business. It is a welcome relief when firms acknowledge up front their hourly rates and what flexibility they have on those rates, and prepare a realistic budget.

Having a realistic budget from the outset of a matter is key. However, once prepared, that budget should not be placed in a drawer to never see the light of day again. This is especially true if the initial budget later turns out to be wrong. Litigation is inherently uncertain, so it is not always the case that a firm that is off-budget has done something wrong. What is wrong is not acknowledging a prior budget’s shortcomings, explaining what caused the variance, and providing a new budget reflecting current realities. A great way to ensure these communications are taking place is doing a quarterly or biannual check to compare the budget to where you are then in spending.

Willingness to be flexible on fees is also important. This can take the form of contingency or alternative fee arrangements. A welcome example of the latter is billing a reduced percentage of your hourly rate, with a premium attached to certain positive results. Flexibility can also take the form of staffing with cost considerations in mind, reducing an individual timekeeper’s hourly rate, or otherwise making a commitment to structure the engagement in a manner to decrease the client’s costs.

Demonstrating your cost consciousness to the client can be done in very small ways that cost the firm little to nothing. In private practice, I worked with an attorney who had taken the untraditional path of moving to private practice after a substantial career in-house with a large corporate client. He had tremendous insight into what an in-house counsel did on a day-to-day basis and small things that could be done to make a favorable impression. One small item that stuck with me was his insistence on physically marking out—as opposed to completely removing—time that would not be charged and sending the hand-marked bill to the client. This allowed the client to actually see that time was not billed. Small gestures like this reinforce to the client that you are cognizant of costs and committed to working with the client to reduce costs. It also builds goodwill. To this day, I still think of my former colleague whenever I review bills with entries voluntarily marked out. It does not happen as much as I would like. But it is still a welcome sight when it does.

Another way to show your sensitivity to a client’s cost concerns is to proofread invoices. It is surprising that firms will often submit bills with time entries from a completely different case or—worse still—a completely different client. Another example is giving the client a heads-up if you expect a particular month’s bill to be very high. Rather than wait for the bill to work its way through, go ahead and let the client know. The client will appreciate the heads-up, and it reinforces the notion that you are cognizant of costs.

Constantly reinforcing that you are cognizant of costs and flexible on them is a great way to set your firm up for repeat business. Indeed, studies suggest consumers are more likely to purchase a product when it is on “sale” or when they believe they are receiving a “good deal.” While in-house counsel are more sophisticated than typical consumers, it would be naïve to think that we don’t fall prey to the same psychology. Whenever I receive an alternative fee arrangement or witness a firm’s willingness to be flexible on costs, I am sure that subconsciously I am more willing to procure the firm’s services because I believe I am getting a “good deal.”

Know the client’s priorities and goals, and the relative importance of a case. Not all cases are alike. A discussion at the outset should occur with the client about the priorities, goals, and relative importance of a case. A rare subset of cases is so important that costs are only a minor consideration and essentially every motion, document, and deposition needs to be chased down. However, most cases fall somewhere well below that threshold. Talk with the client at the outset to understand how much time and money the client wishes to invest in a case and what the client’s goals and priorities are. Do not just assume that you know what is best for the client.

This discussion often helps both litigator and client because it forces in-house counsel to drill down on the end goal. It is better to have those discussions at the front end as opposed to years into an expensive lawsuit when both the firm and the client realize there was never a clear goal for the litigation.

Be proactive. Litigation counsel’s taking the initiative in a matter can be a huge relief to the client. Do not just wait for the client’s direction to address a particular issue. Move the case forward. If the client must direct a firm every step along the way, it can be a significant time commitment. (See the sixth tip.) A firm that takes initiative and addresses matters proactively can lessen the time commitment. When it comes to repeat business, and the possibility to “scale” up a firm’s workload, knowing the firm is proactive will give the client more confidence to refer additional work.

At the end of the case, provide a practical summary of what the client can do better. Providing a practical summary of what—if anything—a client can do better at the conclusion of a matter is a great way to leave a final, favorable impression on the client. This could be as simple as suggesting a slight modification to the warning language for a product or as complex as advising change to enterprise-wide employment practices. By taking this final step, you show the client you are thinking critically about how to avoid future disputes, instead of being content just to litigate the disputes as they come up.