Gallavin on Litigation: Litigators and their customers/clients

By Chris Gallavin

As a litigator do you see those you help as customers or clients? A simple question that I believe can only be answered with that great non-committal answer and Kiwiism “yes and no” or the “yeah nah” doctrine.

I am sure that most will answer “of course we see our clients as customers; the running of our successful business depends upon it”.

Taking that as a given I do, however, want to explore what we mean by these terms a little more closely and see if there are aspects that we might find of some assistance.

Before embarking on this journey of mutual enlightenment let us be good lawyers and start with a few definitions.

First, what do we mean by a customer? The online Oxford Dictionary defines “customer” as “a person who buys goods or services from a shop or a business”. It then gives what I think is a brilliant albeit rather old-school example: “Mr Harrison was a regular customer at the Golden Lion” (I presume the Golden Lion is a fine establishment that sells animal caricatures … or perhaps not).

“Customer service” is defined as “the assistance and advice provided by a company to those people who buy or use its products or services”.

Second, what do we mean by a client? By way of explanation to the first definition of client given by the online dictionary (the interpretation relates to the use of services of a lawyer or other professional) one sees the origin of the word as:

Late Middle English: from Latin cliens, client-, variant of cluens ‘heeding’, from cluere ‘hear or obey’. The term originally denoted a person under the protection and patronage of another, hence a person ‘protected’ by a legal adviser.

Now, following in the footsteps of good lawyers let me make a disclaimer. I am not going to refer to the copious amount of literature available on the suitability of the customer or client nomenclature in the context of professional services.

You will not find here a comprehensive articulation of the theory behind why we should all say “client” or “customer”. What I do argue is that there exists important aspects of each that should or could be applied to the work of a litigator that may act to both ensure a more harmonious relationship between the said litigator and …. client, and ultimately result in more business. So what aspects of each term could be said to be of assistance to a litigator?

Customer

Let me start with the notion of customer.

Litigators are involved in a business. While many undertake much litigation on a pro bono basis they are largely able to do that because, at times, they charge for their services. The more often or greater amount they charge the more opportunity litigators have to .... [insert here your favourite pastime or thing you like to spend your money on] – you get the picture I am sure.

Within any business, people or customers will pay according to the quality of product or services they receive. Provide a good product and you can charge more and/or you are likely to have repeat business.

Some attributes of a customer relationship are of assistance to the litigator in the running of his or her business. These may include notions of timely advice, presenting a helpful demeanour, full and complete information, creating an environment where the customer feels empowered in the process or in control, and of course that they feel they have received value for money.

A more difficult component of our “customer” line of examination is advertising. What is the appropriate line for proactively advertising your litigation services? Certainly overseas experience shows that advertising activity stretches from the mild to the obscene.

The helpfulness of the customer analogy is limited, of course, but I simply ask would you purchase a car from a salesperson who spoke to you like you do your clients? I use the analogy of a car as for many people the outlay is similar to that of engaging the services of a litigation lawyer. Most would answer that question, “of course I would” – others might be more circumspect in their answer.

Admittedly other aspects of “customer service” are less applicable if not entirely irrelevant. These may include notions that “the customer is always right” and the customer knows what he or she wants. But at base customers are not slaves; they do not (or seldom) contract themselves into servitude to their lawyer by abrogating all responsibility for their affairs. In light of this we must guard against treating our clients as though they have done just that each time they have the fortune/misfortune of having to visit our offices.

Client

Let’s finish by looking at the notion of “client”. From the origins of the word as detailed above I particularly like the use of “protection and patronage of another”.

We are, in reality, custodians of the welfare of our clients and as such owe them and others significant obligation. This we know from university, our admission training and the daily operation of our professional practices and I will not restate them here.

However, my residual question in this column is whether we sometimes inadvertently treat our clients not in a way analogous to customers but in ways that undermine our marketing or customer service potential and thereby limit our business, play to stereotypes of the profession and ultimately provide poor service?

Dr Chris Gallavin is an Associate Professor and Dean of Law at Canterbury University. He has published extensively on criminal justice and on evidence and procedure in particular. He is the author of the appellant handbook, Evidence (LexisNexis, Wellington, 2008), and regularly undertakes consultant work in the area of the law of evidence. 

This was first published in LawTalk 853, 24 October 2014.