Symposium: Special Issue of Honor of Herbert Jacob CONTINGENT-FEE LAWYERS AND THEIR CLIENTS: SETTLEMENT EXPECTATIONS, SETTLEMENT REALITIES,

AND ISSUES OF CONTROL IN THE LAWYER-CLIENT RELATIONSHIP Herbert M. Kritzer

The research reported here was supported by a grant from the Law & Social Science Program of the National Science Foundation (Grant No. SBR-9510976). The author acknowledges the research assistance of J. Mitchell Pickerill, Jay Krishnan, and Lisa Nelson. An earlier version of this paper was presented at the 1997 annual meeting of the Law & Society Association, St. Louis, Missouri, 29 May 29-1 June 1997. One hallmark of Herb Jacob's analyses of criminal courts--extensive consideration of the interaction among actors--was less pronounced in his work on civil justice, which was more focused on institutions and the politics behind the laws that those institutions administered. In the research I report here, my emphasis is squarely on the actors in the civil justice process: the relationship between contingency-fee lawyers and clients, and how that relationship plays out in the settlement process. In Felony Justice, Herb, and his coauthor James Eisenstein, focus on the courtroom workgroup as a case-processing (and, largely, case-settling) machine; clients are relatively peripheral. In my account, clients, both current and future, are extremely important in how the lawyer works to settle cases. In the criminal court workgroup, lawyers do not worry about where future clients will come from because police secure them. In contrast, the contingency-fee lawyer has constant concerns about future clients, and I argue, this concern provides a control over lawyers that prior analyses of the contingency fee have largely missed. This dynamic also may explain why the courtroom workgroups, or court communities, found in the criminal courts do not appear to exist in the civil justice system.

*796 CONTROLLING LAWYERS AND CONTROLLING CLIENTS(1) About 25 years ago, Douglas Rosenthal (1974) published his book, Lawyer and Client: Who's in Charge? The question raised by Rosenthal's subtitle has become a major theme in the study of lawyers and their clients: Do lawyers use their knowledge and position to influence their clients, or are clients able to exert control over their lawyers to insure that the work carried out on the clients' behalf genuinely reflects the

clients' needs and interests? Law and economics scholars typically express this issue in terms of the "agency problem" (Miller 1987; Hay 1996), while sociologists of law focus on the issue of "power" in the lawyer-client relationship (Felstiner and Sarat 1992). Underlying all the discussions is the observation that the interests and needs of lawyers and clients often conflict, and consequently a fully autonomous, selfinterested lawyer will make decisions that a fully informed client would reject (Schwartz and Mitchell 1970; Clermont and Currivan 1978; Johnson 1980-81). Empirical studies of lawyers and their clients differ in their answers as to the locus and nature of control. Some find that the clients, at least in some situations, exercise a reasonable amount of control:

Heinz and Laumann (1982, 360-74) find that corporate lawyers are quite responsive to their corporate clients, but largely autonomous of their personal services clients. *797 Cain (1979, 334-35) found that most of the solicitors she observed had their objectives defined by their clients, and that the solicitors generally provided the service the client requested. Van Hoy (1995, 705) finds that due to the high level of routinization in franchise law firms, lawyers (and secretarial staff) in those firms do dominate clients, but the standardization imposed by management "helps to protect clients with basic problems who might otherwise be subject to unscrupulous practices."

However, many more studies report that lawyers dominate the relationship:

Hunting and Neuwirth found that accident clients had little say in the settlement of their accident claims (1962, 107-09); Rosenthal (1974) found that lawyers were more responsive to active clients, but that largely it was the lawyer who was in charge. Hosticka found that, in the legal services setting, lawyers seldom even asked their clients what the client wanted the lawyer to do (1979, 604). In criminal justice cases, studies have repeatedly found that defense lawyers see themselves as moving guilty clients through the system rather than seeking to get the clients' input and defining goals and strategies in terms of those inputs (see Blumberg 1967; McIntyre 1987, 153-62; McConville et al. 1994; Nardulli 1986; Casper 1972; Flemming 1986), and that to do otherwise can produce problems for the client (see Mann 1985; Simon 1991). However, variation in client control in this area has also been shown by a number of scholars (see Flemming 1986; Mather 1974, 1979; Skolnick 1967).

In consumer bankruptcy, lawyers generally sell what amounts to a product (a Chapter 7 filing or a Chapter 13 filing), often on a take-it-or-leave-it basis, while doing relatively little to determine what is best for the individual client (Neustadter 1986). Mather, Maiman, and McEwen (1995) found that divorce lawyers reported that they largely controlled the direction of their cases, and on the best way to handle them. The researchers found lawyers try to avoid taking cases where the client will insist on things that the lawyer views as unrealistic or undesirable. They use the metaphor of passenger and driver, arguing that the driver (the lawyer) largely determines both the destination and the route to that destination, with the passenger (the client) at best being allowed to do a little backseat driving.

Still other studies find more ambiguous patterns.

Southworth (1996) reports that lawyers in civil rights and poverty practice vary substantially in the degree to which they respond to and defer to clients, and that these variations depend upon certain characteristics of the lawyers. *798 Flood finds that corporate lawyers are more responsive to those clients who are seen as having substantial long-term fee potential (1987, 386-90). Drawing on extensive observation of divorce lawyers interacting with their clients, Felstiner and Sarat (1992) find a great deal of ambiguity in the power relationship, with issues of dominance and control constantly in flux and subject to implicit renegotiation (1992, 1495-98).

This body of research makes it clear that there is not a simple answer to the question of who controls the lawyer-client relationship. In this article, I will show how these ambiguities work in the context of representation on a contingency-fee basis. Most, but not all, such representation involves claims for compensation arising from personal injuries. This is a context that is particularly rife with potential lawyer-client conflict. This potential reflects the combination of two elements. First, the economic calculations involved in handling a case on a percentage basis (the way that American contingency fees are typically calculated) creates a tension between (1) the amount of time the lawyer wants to devote to the case given the constraints on the return that time will produce and (2) the desire to maximize the recovery for the client; it is usually to the lawyer's immediate advantage to obtain a quick settlement, even if that settlement is well below what the case might be worth (see Johnson 1980-81). Second, most clients represented on a contingency basis are relatively unsophisticated and as such lack the information needed to assess the

actions and recommendations of the lawyer. As I will show in my analysis, personal injury lawyers have available many tools to manipulate and control their clients into accepting settlements, the potential result of which is to reduce lawyers' time investment in contingency- fee cases. While lawyers, regardless of how they are compensated, may try to manage their relationships with their clients in a number of ways (Reed 1969), at least two factors check what would appear to be a tendency for lawyers to dominate the client in ways that run counter to the clients' interests. The first, and most obvious, of these is professionalism. The norms of professionalism point the lawyer toward putting the client's interest first. Of course, this does not always happen, but that does not mean lawyers always put their own interest first. A variety of studies (e.g., Sarat and Felstiner 1995; McIntyre 1987; Mann 1985; Nelson 1988; Mather 1979) indicate that lawyers do feel a commitment to their clients and want to do for their clients what the lawyer believes to be in the client's interest. The lawyer and the client may differ in the assessment of what is in the client's interest, but in many ways the role of the professional is to make his or her own judgment as to what is best for the client, and then try to explain to the client the reasons underlying that judgment. *799 What I will argue at the conclusion of my analysis is that one does not have to rely on professionalism to expect that the lawyer will not look only to his or her own immediate interest. A second factor is at work as well. Johnson (1980-81) showed how there can be a conflict of short-term interest for lawyers paid on either an hourly or a contingency-fee basis. However, the lawyer who thinks only of the short term is shortsighted. Client satisfaction is the key to the lawyer's long-term interest, and that satisfaction is best achieved by the lawyer looking out for the client's interest even if doing so creates a conflict with the lawyer's short-term interest. In the case of contingency-fee lawyers, I argue that caring for their long-term interest means that lawyers do not simply take the quick, cheap settlements that economic analyses suggest are to be expected, but try to insure that their clients go away satisfied and stay satisfied, as they inevitably discuss their experience with friends, family, neighbors, and co-workers.

CLAIMANT REPRESENTATION IN TORTS Tort-based compensation systems place the burden on the claimant and the claimant's representative to seek out compensation in the wake of injuries caused by another party. While U.S. insurance companies for tortfeasors commonly initiate contact with

potential claimants,(2) the purpose of such contacts is to resolve claims quickly and head claimants off before they obtain legal representation, which typically results in higher payouts by the insurer (Ross 1980, 70, 193-98). Another reason for insurance company practices of making quick contact is that many, if not most, injury victims have no idea what their claims are likely to be "worth."(3) While the rhetoric of the insurance industry is that it wants to resolve claims quickly and fairly, "fair" is a relative term. One goal of the insurance adjuster is to set the claimant's expectations (Ross 1980, 70-71; 168-70); an adjuster does this by focusing the claimant's attention on some aspects of the loss (medical expenses, missed work, property damage) without alerting the claimant to other elements of damages (forgone activities, pain and suffering, loss of society and companionship). Working against the adjuster's efforts to focus the claimant and minimize his or her loss are the news media and reports of large verdicts and settlements. (4) *800 One of the important services a lawyer provides to a personal injury client is to value the claim. In some situations, the claim may be worth much more than the client realizes, in which case the client is likely to be very happy with almost any settlement a lawyer can obtain on the client's behalf, even one that is actually less than true potential value. In other situations, the client may have very unrealistic expectations of what a claim is worth; in this situation the lawyer must "sell" a settlement to the other side and to his or her client. The lawyer's role in valuing claims and convincing both clients and opponents to accept a settlement proposal is complicated by the contingency fee system. The lawyer must obtain some recovery to obtain any fee, and the lawyer must balance the time and effort put into a case against the fee potential of the case. As noted above, often it is better, from an economic viewpoint, for a contingency fee lawyer to resolve a case through settlement than through trial (Kritzer 1991, 63-64), even if the trial might produce a larger overall payment (see, for example, Rosenthal 1974). Thus, the lawyer will normally want to be in a situation where he or she can readily convince a client to accede to what the lawyers sees as acceptable. How can the lawyer do this? I will argue that from the lawyer's perspective, three elements get clients to accept settlement offers: creating initial expectations, preparing clients for the settlement negotiations, and selling the settlement proposal to the client. (5) The analysis in the body of this paper draws upon three months of observation in the offices of three Wisconsin contingent fee practitioners supplemented by semistructured interviews with 28 additional Wisconsin lawyers. (6) In addition to describing the three elements noted above, I will assess the degree to which the lawyers reflect their own interest as compared *801 to their clients' interests in this process. Lawyers, at least those I observed, are very mindful of the client's interest

because while clients are typically "one shot," the lawyers rely heavily on current clients for future clients, both as sources of referrals and as potential repeaters. (7) Given the nature of plaintiffs' practice, it is likely that this is a fairly common pattern.

LAWYERS, CLIENTS, AND SETTLEMENTS Lawyers (and many clients) know that relatively few cases ever get to trial. While it is useful for a lawyer to have a reputation as willing to try cases (and for winning those he or she does try), the economics of the contingency fee means that it is most advantageous for the lawyer to avoid trial in most cases. Still, the process of settling cases takes place in the shadow of what might happen should the case go to trial; unfortunately, the only way to know what would happen at trial is to go to trial. Lawyers believe that they have some idea of what would happen, both from their own direct experience and from the attention they pay to the trials in which they are not directly involved (either by word of mouth, or from sources such as jury verdict reporters). The only sources of information for most clients are news reports that are wildly biased toward the largest cases (see Chase 1995; Bailis and MacCoun 1996), word of mouth from their social circle (which is likely to also be based largely on the biased media reports), and the assessments of their lawyers. This lack of information provides the lawyers with a substantial measure of control over the client's expectations.(8)

*802 Managing Client Expectations The first question is how do lawyers go about creating the clients' expectations? This process typically begins at the very first contact, and involves three key strategies by the lawyer: avoiding reference to specific figures for case outcomes, deflating expectations, and emphasizing uncertainty. Exactly how and when lawyers deploy these strategies depend in part on when the client first contacts the lawyer. That is, if the client contacts the lawyer very soon after the accident, it is easy to avoid answering specific questions because the client is just beginning his or her recovery period; on the other hand, if the client waits some months until recovery is complete, the situation presented to the lawyer may be more clear with regard to injuries (but less clear with regard to other factors).

Avoiding Creating Expectations While a number of respondents remarked that they knew of lawyers who created expectations of substantial recoveries early in a case, the lawyers I observed and spoke to generally avoided talking about specific amounts of potential compensation during initial interviews or early in the case. Surprisingly, given the popular image of the litigious American, few clients (or potential clients) in the initial lawyer-client discussions I observed specifically asked the lawyer how much they might be able to recover. Furthermore, the lawyers were generally careful to avoid bringing up the subject of what the case was worth. When it did come up, it was likely to be in the context of some limitation on damages, such as the schedule of damages under workers' compensation, or the damage cap that applies to governmental defendants in Wisconsin. This pattern was also clear from the interviews. In response to my question, "what do you do to try to establish a client's expectation [regarding amount of compensation]?" lawyers told me things like: I try to avoid the subject as much as possible because I never really know until the end how much a case is worth. It depends on a lot of factors. A lot of my clients try to pin me down. At the outset I don't promise or guarantee them anything. I don't want to get clients thinking at the initial conference that somehow or another we are talking about boxcar figures because then it is very difficult to talk settlement when you want them to be reasonable. When I see people, I first tell them that I do not know what your case is worth. Anybody who tells you that they know is just making it up, because your bills are not in, we don't know how long your treatment *803 will take, we don't know how well you will recover. We don't know all of these things. I probably do stuff specifically not to establish expectations.... I try not to build up any expectations. [If they ask,] I tell them that I'm not going to be able to give them that information. I can only give them my version of what goes into how the decision is made.

I don't give [clients] any numbers right off the bat because you have no idea. You don't have enough [information] at the first meeting. If you say any number, it sticks in their head and then that's what their expectation is forever. So, I always try to keep their expectations down. Lawyers might try to find out if a client has some amount in mind, but the goal here is primarily to determine whether they need to head off unrealistic expectations. One lawyer stated: You have to start feeling them out from the beginning to find out if all of a sudden they have an inflated value of the case. You have to find out where they are at.

Deflating Expectations As noted previously, the nature of the news coverage of jury verdicts and compensation for injuries creates a biased image of the outcomes of compensation claims. This does not stop potential clients from taking news reports as indicators of what their claims might be worth. One lawyer reported that "some clients bring in clippings of somebody who was malpracticed upon" and won a large jury verdict. Another lawyer commented, "it is amazing how many clients come in and say that they are not trying to get rich off this case, but think they should get $100,000 for a whiplash or a slip and fall." Still another described the situation of a woman with some questionable soft tissue injuries who insisted that her case was worth $700,000. Sometimes the context of the injury provides a way for the lawyer to lower expectations. For example, workers' compensation (WC) statutes strictly limit the amount of compensation available to persons injured on the job when no third party is involved. Lawyers can use the limits imposed by WC to make clear the range of compensation that is likely to be available. In effect, the workers' compensation limitations themselves tend to lower expectations. One lawyer I observed frequently commented to a new WC client that his or her injury would have been "worth a lot more" if the case was not limited by the workers' compensation statute. While the caps under WC tend to lower expectations, other types of damage caps, or debates about caps, actually tend to increase expectations. *804 While very few injury claims result in compensation payments of $250,000 or more, (9) this is a common figure for caps for various types of damages. The existence of such caps can create expectations, particularly when the lawyer needs to advise the client of the limits of recovery. In Wisconsin, this can happen in a variety of contexts, but as noted above, it

is most common in cases involving a governmental unit as the defendant (e.g., an auto accident caused by the negligence of a governmental employee operating a government- owned vehicle). When a cap of $250,000 applies to a case, the lawyer may have to both advise the client of the limit and then immediately prevent that from creating an expectation. For example, I sat in on discussions with one potential client who had been seriously injured ("I'm lucky to be alive") in an auto accident involving a state car, where the driver of that car was unambiguously at fault for the accident; the injuries involved broken ribs and other internal trauma, and resulted in seven days of hospitalization including three days in intensive care. In the course of the discussion, the lawyer explained that because the other driver was a state employee, the claim against the state was capped by statute at $250,000. The problem, of course, was that as soon as the lawyer mentioned the $250,000 cap, that likely got the client thinking in terms of that amount. To counteract this, the lawyer engaged in what I came to recognize as a common method of deflating a client's expectations; the lawyer said to the client, "Hopefully, you don't have a $250,000 claim because that would mean you had some serious permanent injuries; for your sake, I hope this claim is not worth $250,000." One of my interviewees described this strategy very clearly: I always start out explaining that if, for example, their child had suffered a broken leg, the case would be worth a lot more if instead the child had been left crippled by the accident. ... Isn't it better that the child is not crippled, because it's far better to have a healthy child than to have a big case? You try to get them thinking about things in perspective .... If the child had two broken legs, the case would be worth more, but aren't you glad it's only one? *805 The many-year campaign of the insurance industry to portray the tort system as in crisis and out of control has, in some ways, made the situation of unrealistic expectations worse. As one lawyer described his experience: It is not unusual that somebody comes in and says, "Well, I won't take a dime less than $500,000." We say, "Well, that's interesting, but the last one we tried that involved these injuries and these similar facts, we got an initial offer of $5,000. We were delighted that we were able to eventually get $16,000." It is a constant problem because people really believe the insurance industry propaganda that you get $500,000 for showing up. A final way for a lawyer to deflate a client's expectation is to quote what the lawyer knows is likely to be a low-ball figure. That is, a lawyer may simply tell the client that a case is worth less than the lawyer thinks is likely to be the case. In the words of one lawyer:

I always tell them that it is worth less than what I think I'm going to get, and then when I get the settlement they are ecstatic, I look good, and everybody is happy. Now is that honest? Probably a little tinge there of not being totally honest with the client. Does it Work? Yes!

Emphasizing Uncertainty As I noted previously, neither lawyers nor clients tend to bring up the question of specific valuing of a case during the initial meetings. The lawyers tend to emphasize to the client the need to get through the recovery period in order to determine what treatment is needed and whether the injury will have any continuing consequences. When the client does raise the question of how much the compensation might be, the lawyer usually explains that it will depend upon how well the client recovers from the injury, and whether any complications come up. The lawyer also explains that the amount the client will end up with will depend upon how much will have to be paid to medical insurers to satisfy subrogation claims. (10) Typically, the most the lawyer will say is that "we should be able to get you some money." If a client presses the question, the lawyer may go through a list of *806 the elements that will ultimately determine the amount of compensation, with the emphasis on whether there is any permanent disability.

Preparing Clients for Settlement There comes a time when the lawyer can no longer avoid mentioning actual dollar figures to the client. Specifically, when it comes time to try to settle a claim or case, most lawyers state a specific amount, although some lawyers prefer to lay out the "specials" (the economic loss) and ask the respondent to make an offer to cover both those specials and the general damages (pain and suffering). (11) As is standard in most bargaining situations, the lawyer typically makes a demand that is somewhat higher than the lawyer's valuation of the case. This presents the danger that the client will expect to get a settlement equal to the initial demand. The lawyers have to be extremely careful to explain to their clients that they should not expect to get anything like the amount of the demand; the eventual settlement will almost certainly be considerably less. Lawyers do this in three primary ways beyond simply stating the fact that this is the case.

Not surprisingly, the first approach is to talk explicitly about the kind of settlement range the lawyer thinks is likely. For example, in one case I observed, the lawyer explained to the client that he thought the case would settle in the range of $20,000$25,000, and that the client should not pay any attention to the specific amount of the demand because that was "just for negotiating purposes." In another case, the lawyer told the client (a repeater) that he hoped the instant case would net the client "perhaps $1,000-$1,500." As this latter example suggests, often the emphasis to the client was not on the settlement amount but on what the client would net after fees, expenses, and the payment of subrogated claims. In fact, typically the lawyer, when presenting a settlement offer to a client, would emphasize the bottom line for the client, not the total settlement amount.(12) Part of setting the settlement expectation may involve putting a range in the context of a likely jury verdict. Some lawyers simply put this in terms of their own experience. One or two lawyers I talked to mentioned having copies of jury verdict reporters available that they show to clients. One lawyer reported that he kept a set of clippings from the newspapers in his small *807 local community that he used to deflate the expectations of overly optimistic clients. The second approach to preparing the client for settlement is to play on the risk aversion of the usually one-shot client by emphasizing the risk and uncertainty of going to trial (compare with Rosenthal 1974, 111 ). The lawyer will explain to the client that while the lawyer is convinced that the client's case is solid, and that a jury is likely to return a verdict favorable on both liability and damages, "one simply doesn't always know what a jury will do." During my observation it was common for the lawyers to emphasize to their clients that all the publicity about tort reform had made juries both skeptical of plaintiffs and very reluctant to make significant damage awards, particularly in cases where the injuries were not clearly visible. (13) The third approach I saw was for the lawyer to bad-mouth the client's case. The lawyer would talk about the weaknesses of the case, and what might go wrong if it went to trial or hearing (the latter in workers' compensation cases). This is not to say that the lawyers made up problems just to convince clients to accept a settlement. Rather, it was a matter of emphasis; specifically, lawyers tended to emphasize the weaknesses of a case when they strongly wanted to settle (which was most of the time). While one might be tempted to attribute this pattern to the incentives produced by the lawyer's own economic interest in avoiding the cost of trial, the pattern I saw was more in line with the realities of cases because it tended to happen after the lawyer had completed most of the trial or hearing preparation. For example, in one workers' compensation case, the lawyer had the client come in on the eve of the hearing to prepare him for his testimony; this happened to be a case in which the

client came to the lawyer relatively late. As the lawyer and client went through the client's testimony, the weaknesses in the case became increasingly clear. Early in the session the lawyer commented that it would be easy to take the case to hearing, and that the "hearing would be quick, so we could easily do it." As the session progressed, the lawyer became less inclined to push forward for the hearing, eventually commenting to the client that "this case wasn't set up right ... this is almost the kind of case that I'd say take the money and run, regardless of what they offered."

*808 Selling a Settlement Proposal What happens once a lawyer has a settlement proposal in hand that the lawyer would like the client to accept? Before answering this question, I should note that the lawyers I observed typically tried to push the opposing party to a higher settlement figure, and stopped pushing only when, in the lawyer's judgment, additional efforts were not likely to produce significant movement. (14) Of course, the plaintiff's lawyer has no way of knowing what the opposing party's resistance point actually is (except possibly in cases exceeding policy limits), and has to make judgments based largely on experience and intuition. In convincing the clients to accept a settlement, the lawyers focused on how much the client would walk away with. The lawyer would mention the total settlement value, but quickly move onto the client's bottom line. Given Wisconsin's subrogation rules, clients commonly end up with significantly less than the proportion of the settlement that the fee agreement suggests they would receive. The lawyers employed three strategies to "sell" the settlement to the client, although for many (perhaps most) clients, no "selling" was really necessary. One strategy was to tell the client that the lawyer was taking a reduced fee. Most often what this meant was that the lawyer computed her fee based on the recovery, net of payments to subrogated interests (typically after having convinced those interests to accept discounted payments).(15) For example, a settlement of $5,000 might involve medical bills totaling $2,000, but the lawyer convinced the health insurer to accept $1,400 from the settlement. Based on the retainer agreement, the lawyer could claim a fee of $1,667 (one-third of $5,000); however, he took a fee of only $1,200 (one-third of $3,600). In this example, assuming $100 of miscellaneous expenses (e.g., charges for medical records, accident reports) for which the lawyer also receives reimbursement out of the settlement, the client nets $2,300 out of a total settlement of $5,000. Alternatively, the lawyer might feel that *809 the client needs to get $2,500 in order to walk away happy, and the lawyer consequently reduces her fee to $1,000,

particularly if the case was resolved quickly once the client's medical outcome was clear. A second strategy came up when the lawyer's fee agreement involved a graduated fee based on when the case was resolved.(16) A typical graduated agreement called for a 25% fee until the lawyer had to begin "substantial trial preparation," at which point the fee went up to 33%. This arrangement allowed the lawyer to demonstrate to the client that the client was better off with a settlement considerably below what the case might bring at trial, even ignoring the possibility of losing at trial. This result was explicitly driven by the costs associated with going to (or even getting ready for) trial. (17) From the client's perspective, the costs of proceeding to trial included the expenses of bringing experts to testify (particularly medical experts) and the increased lawyer's fee. It is easy to see how this works. Assume a case that the lawyer estimates would produce a $25,000 verdict. if the case goes to trial, the lawyer's fee would be onethird, or $8,333, and the client would have to pay $2,000 in additional expenses. The net to the client, before payments to subrogated interests, would be $14,667. If on the other hand, the client accepts a $20,000 settlement with a 25% contingency fee, the client gets $15,000. The picture becomes even clearer when one takes into account subrogation. If the client's case succeeds at trial, the subrogated parties will normally only accept discounts from full repayment that reflect the jury's determination of their insured's degree of negligence;(18) furthermore, given the lawyer's increased costs, the lawyer will not be inclined to take his or her fee off the verdict, net of the amounts due to the subrogated parties. To make the example concrete, assume medical expenses of $5,000, and the net to the client if the case produces a verdict of $25,000 will be only $9,667 (assuming zero liability on the client). If the lawyer can persuade the subrogated party to accept $3,500, and does not charge a fee on that part of the settlement, a $20,000 settlement will net $12,375 to the client. A settlement of $18,000 would leave the client $10,875, still ahead of going to trial; in fact, under this scenario, the settlement equivalent of a $25,000 verdict is only $16,389. What this means is that, even without taking into account discounts for risk preference, any settlement over $16,389 puts more money in the client's pocket than a verdict of $25,000. *810 While a settlement producing a better outcome for the client works most clearly with a graduated-fee arrangement, even without such an arrangement, the lawyer may be able to show a client that a settlement is worth more than a trial; one lawyer described his approach this way: I have two columns, settlement now versus trial. I will go through and say, "okay, your costs and disbursements are this; if we go to trial, you are going to end up here.

If your subrogation claims are this now, we can probably negotiate these [down], but if we try it, you will be deemed whole and you will have to pay every cent on the dollar. So let's assume we can get this now and this much at trial." You can show them that even with more at trial, they will get more money if they settle now. The final strategy for selling a settlement is to play specifically on the uncertainty of trial. This can work both with regard to the likelihood of a jury verdict favorable to the client, and with regard to the valuation of the injury by the jury. On the former, one lawyer told me: We usually have some recent, less-than-exciting results. For example, at this time, the last four jury trials in Northland County were defense verdicts, and those were all in the last month. On the latter, another lawyer stated: The headline says that a Lakeville man won his lawsuit. Yeah, well, you read it, and the guy had $12,000 in damages, and the jury gave him $2,000. The paper thought it was a win, but it certainly wasn't. The lawyer might also emphasize the issue of comparative negligence, and explain to the client that even if the jury finds that damages are, say $25,000, it might also determine that the client was 40% at fault, which would entitle the client to only $15,000.

Dealing with a Balky Client What can the lawyer do if the client balks at a settlement? One lawyer I observed described a client who had very clear expectations about the amount of money he wanted from the case. Specifically, the client wanted to make enough to purchase a $20,000 sailboat and claimed he had friends who had gotten similar amounts for similar injuries. The case involved perhaps $1,000 of medical bills (a couple of visits to the doctor plus a half-dozen physical therapy sessions); the client missed no work (and, hence, he *811 had no claim for lost wages); and the client had no residual impact from the injuries. The lawyer got what he viewed as a reasonable offer of settlement--$5,000. The client balked. What can a lawyer do at this point? One solution is simply to withdraw from representing the client. The typical contingency-fee retainer agreement in Wisconsin does include an "out" clause for the

lawyer, and the lawyer has a great deal of leeway in exercising this option. Interestingly, when I asked the lawyers I interviewed about "firing clients," few mentioned the problem of clients balking at settlement. More often, lawyers terminated representation because a client failed to keep appointments, was difficult to work with in some way, or lied on some critical point. (19) So what can a lawyer do, short of firing a client, if a client balks at accepting what the lawyer views as a reasonable settlement offer? I saw or heard about three approaches. First, the lawyer can tell the client that they need to move the case along in the process, including initiating suit or preparing for trial. The lawyer might emphasize to the client that under the fee agreement, the percentage will go up, and if the lawyer is not able to substantially improve the settlement offer, the client will come out worse than if the client accepts the settlement now. The lawyer might also exercise the option in most retainer agreements of demanding that the client immediately pay costs such as filing fees, expert witness fees, and so on. While none of the lawyers I spoke to acknowledged that they did this as a means to encourage acceptance of a settlement offer, one lawyer reported that at a firm where he had previously worked this was a fairly regular practice: We used to regularly try to frighten people into taking settlements that they didn't want because they were still kind of gung ho on the whole litigation at that point. So when it was a gray-area case, we used to say, "Yes, pay us $1,000 and we will file suit." They wouldn't have the money, so that would be the end of that. It is a pretty efficient way of getting rid of a case where you thought you could get them a settlement but it didn't play out that way. It may be that by simply asking the client to provide a check to cover even the relatively small fees involved in filing the court case, the client will pause and reconsider his or her rejection of the settlement offer. Second, some lawyers genuinely have no problem moving cases along to trial. For example, some lawyers maintain that they will not even accept a case unless they are willing to pursue it all the way through trial (with the *812 out that if some unknown fact comes up that changes the case radically, the lawyer may reconsider). As one lawyer said, "We are absolutely from day one litigation prone." If a client declines an offer, these lawyers prepare the case for trial. Of course, the lawyer may believe from his or her experience that the client will reconsider the settlement as the process continues. That is, as the client experiences more of the litigation process (e.g., a deposition), and the reality of a trial looms larger on the horizon, the client may become more inclined to settle. Lawyers may also view it as important to their reputations to feel ready and able to take any case to trial. (20)

A third approach, and one that seemed to be fairly common, is to invite the client to have another lawyer evaluate the case. In the case above, where the client was hoping to buy a sailboat with the proceeds of his case, the lawyer suggested to the client that he find out who the lawyers were who got the $20,000-$30,000 settlements for his friends. If one of those lawyers believed that he or she could get substantially more than what was on offer, then the first lawyer would agree to take a fee only on the amount of the offer on the table. One of my interviewees described a case he was then handling in which he had recommended accepting a settlement offer: [The client] doesn't want to do it. I told her that given my investigation, including reports from eyewitnesses and from other people who were involved in the accident, the impact was so minor that I don't feel that a jury is going to [come up with] an award above and beyond what the insurance company is willing to offer, nor am I going to spend resources and time pursuing the case further. I told the client, "Please reconsider the offer that the insurance company has made. If you do not want to accept it, please find another attorney to represent you, and have that attorney contact me to work out a suitable arrangement."

CONCLUSION Contingency-fee lawyers exercise considerable control over their clients in the settlement process. Arriving at a settlement involves assessing information, valuing the case, and estimating likely costs and outcomes if a case goes to trial. While all these elements involve uncertainty, the lawyer has the kinds of experience and knowledge necessary to weigh these factors, while only the very occasional client can begin to make the necessary judgments. The more difficult question is whether the lawyer exercises this control *813 primarily to serve the lawyer's immediate interests, or whether there are checks that align the lawyer's interests with the client's. In Lawyer and Client: Who's in Charge? Rosenthal (1974) focused specifically on the issue of control, arguing that when left entirely to their own devices, lawyers tend to forget their clients' interests. Rosenthal argued that it was to the client's advantage to exercise as much control as possible. The client may be able to exercise control over how and when the lawyer focuses on the client's case, but being a squeaky wheel does not help the client gain insight into what a case is worth. How, then, can a client exercise control over the settlement process? The client can certainly refuse to accept a settlement, but how does the client assess an offer? A client could try to locate jury verdict reporters, or literature on case valuation, and use this to come to an independent estimate of the case value. Alternately, a client could pay another lawyer

a fee specifically to evaluate a settlement offer. However, such things virtually never happen. Few clients are willing to bear the expense of an independent evaluation, and relying on published sources would at best provide a sense of the range of values into which the client's case probably falls. All this seems to put the lawyer firmly in the driver's seat. It is undoubtedly true that most lawyers handling cases on a contingency-fee basis are extremely mindful of their own interests as they negotiate settlements. However, this does not mean they are not very concerned about the interests of their clients. The key here is that for the lawyer, it is not the outcome of a single case that typically matters, but the outcomes across the set of cases. This means that the lawyer has to be concerned about not only the return from current cases but the prospect of getting future cases. One way to think about this is that the lawyer must consider the entire set of cases currently in the lawyer's portfolio (or inventory), and what implications a specific case might have for both the current portfolio and the cases that might come into the portfolio later. Consequently, lawyers do not always handle a given case in the manner one would predict of someone who was seeking to maximize profit on a caseby-case basis. The lawyer must take into account both the short-term payoffs from current cases, and the long-term reputational issues, both with regard to future clients and future opponents. The three lawyers I observed are very cognizant of their reputations, and the issue of reputation came up repeatedly in my interviews as well. The typical view is that a lawyer must be recognized as someone who would be willing and able to take cases to trial; if a lawyer has a reputation for wanting to settle quickly, insurance adjusters and defense attorneys are less inclined to make top-dollar settlement offers. The best way to get quick, good settlements, therefore, is to have a reputation of being aggressive both at trial and in negotiation (see Genn 1988). Interestingly, the lawyers who *814 have reputations for being most aggressive in moving toward trial may also be most able to turn cases over quickly once a client's medical situation has become clear; if an insurer knows that a lawyer is moving to get a case ready for trial, the insurer has an incentive to get the case settled. But reputational issues are not just important for settling cases. They are also important for getting clients. The biggest single source of clients for most contingency-fee lawyers is word of mouth (see Kritzer 1998). Most lawyers see satisfied clients as their source of future clients. It does not help a lawyer's long-term financial interest to have clients later realize that a co- worker or neighbor who had a similar injury received a much larger settlement check. The emphasis on satisfied clients as a source of referrals was very evident at one of the practices where I observed. The lawyer always wanted to be present when the client picked up the settlement check. The typical routine was for the lawyer to hand the client the check,

and his business card, and say to the client something like, "Hopefully, you won't need me again ... If you know anyone who does [need me], please send them in." Lawyers want their clients not only to leave the case satisfied but also to stay satisfied as they discuss their experiences with family, friends, neighbors, and co-workers. Particularly those lawyers who handle the most routine cases want clients to be satisfied because a surprising number of clients may be repeaters. In one practice where I observed, a partner estimated that 10%-15% of the firm's clients are repeaters. He emphasized that some of his firm's practices with regard to setting the final fee are geared specifically to assuring that clients leave satisfied; in particular, he believes that it is not in the firm's long-term interest to take a fee that exceeds the net to the client (after expenses and subrogation), even though no ethical strictures prevent such fees, and the firm's contingency-fee retainer agreement clearly permits such fees. The role of reputation through word of mouth and repeat clients is important for a successful practice, even for practices that aggressively seek clients through media or direct-mail advertising. The head of a firm that makes extensive use of direct mail to auto accident victims told me that 80% of his firms cases come from repeat clients and prior client referrals; only 15%-20% comes from direct mail. None of the previous assessments show clearly whether the lawyer's control over the settlement process ultimately works more to the benefit of the lawyer or to the client. A definitive conclusion on this question would require information that I do not have, and that is probably not available: some clear standard against which to evaluate specific case outcomes. Absent such a standard, any judgment of who benefits from the system must rely upon an evaluation of the interests of the lawyers and their clients. While it is clear that in any specific case, the interests of lawyers and clients can conflict, looking at contingency legal practice in terms of a set of current *815 and future cases brings the interests of lawyers and clients closer together. Lawyers best serve their own long-term interests by ensuring that their clients are well served by the results, and this puts a check on the short-term conflicts created by the economics of contingency-fee legal practice. This analysis shows once again that past analyses have failed to capture certain complexities of lawyer-client relationships that. In the divorce context, Felstiner and Sarat (1992) argued that the power relationship between lawyers and clients undergoes renegotiation rather than reflecting a simply hierarchy. In corporate practice, Flood (1987) showed that the lawyers' deference to clients depended upon the existence of, or prospect for, a long- term fee-producing relationship. In civil rights and poverty practice, Southworth (1996) showed substantial variation in lawyers' attitudes toward the client's role in decision making. The complexities differ substantially from context to context, but together they serve to undercut simple views

of professional dominance in the lawyer-client relationship. Clearly, lawyers often have the ability and the opportunity to dominate, but case complexities (divorce), professional norms and experience (poverty and civil rights practice), or concerns about long-term economics (corporate and contingency-fee practice) serve to limit what the lawyers do in practice. ****** In Felony Justice Herb Jacob and James Eisenstein (1977) emphasized the role of the courtroom workgroup, and how ongoing interactions produced relationships that created loyalties among the members of the workgroup. One implication of those loyalties was that the interests of the transients in the system, the defendants, had to be considered in light of the needs of the regular actors in the system. The workgroup needed the defendants because without them, there was no reason for the system itself to exist; however, no one had to worry about where the next defendant was going to come from. In contrast, the contingency- fee lawyer is very concerned about the flow of clients, and a successful practitioner must be constantly alert to the factors that can influence that flow. While other actors in the system, particularly insurance adjusters, are important regular players, few attorneys have sufficient ongoing contact with individual adjusters to create relationships that resemble anything like the relationships among the regular players in the criminal courtroom. While Jacob had a long-term interest in organizational analysis, much of what this analysis captured was the structure of relationships. For example, the workgroup concept in Felony Justice draws from organizational theory, but it serves largely to describe a set of interpersonal relationships in the organizational setting of the courts. In the civil justice system, much less goes on within the courts because case resolution does not require court action. Nonetheless, as in the criminal courts, interpersonal relationships *816 within the civil context structure the handling of cases. Where in the criminal courts, the relationships center around the courtroom, in the civil justice system, the relationships center around the lawyer's office. While my analysis has focused on the contingency-fee lawyer, if I had studied the insurance-defense bar, I expect I would have found that the ongoing relationship between lawyers and their insurance company clients have very important implications for how those lawyers handle their side of the cases. What drove the analysis of the criminal courts in Felony Justice was the ongoing nature of the key players' work. Most analyses of contingency-fee practice focus on individual cases rather than the flow of cases and how the cases relate to one another. What the analysis here shows, just as Herb Jacob and James Eisenstein's analysis did, is that one must look beyond individual cases to accurately understand how the actors in the system go about their work. For those actors, cases do not exist in isolation. The

interrelationship among cases can modify what an actor, a criminal defense lawyer, or a contingency-fee plaintiff's lawyer, chooses to do in a particular case. In the case of the contingency-fee lawyer, this may mean taking a reduced fee, or pursuing a case that, considered in isolation, is not in the lawyer's own financial interest. The most successful contingency-fee lawyers routinely think about the long-run payoff from a portfolio of cases rather than becoming too concerned about the outcome of any one case. While the O. J. Simpson criminal trial was in progress, a very successful contingencyfee lawyer told me he would have loved to represent Simpson, and that he would have been willing to handle the case on a contingency basis. Normally, contingency fees in criminal cases are not permitted, but this lawyer had in mind a very unusual form of contingency: he would have asked to be paid only if he lost the case. His rationale was actually very clear: if he won the case, the impact on his reputation would be more than sufficient compensation.

*817 APPENDIX: WHAT IS A CASE WORTH? While it is common for lawyers to talk about "what a case is worth," the reality in personal injury cases is that this is an area with a great deal of uncertainty. In a 1994 survey of attorneys involved in federal civil cases, the Federal Judicial Center asked lawyers whether the outcome of the sampled case involved significant uncertainty about damages, liability, or both liability and damages. Fifty-two percent of the respondents indicated that the amount of damages was uncertain, and this figure held for both those cases that went to trial and those that did not. (21) The fact that estimating damages is an imprecise art is not a new observation. Almost 25 years ago, in his study of the interaction between lawyers and clients in injury cases, Rosenthal had a panel of four experts place values independently on 59 cases; in 52 of those cases, the ratio of highest to lowest valuation was two or more, and for 19 cases, the ratio was four or more (1974, 202-7). About a decade later, Gerald Williams reported the results of an experiment in which he gave 20 pairs of lawyers, all of whom practiced in Des Moines, Iowa, the same information about a single case. Each pair of lawyers retired to negotiate a settlement in private and then reassembled to announce to the entire group the settlement each pair had arrived at. The low figure was $15,000 and the high figure was $95,000, with the other settlements scattered randomly between the high and the low (1983, 5-6). One regularly hears references to a "three times specials" rule of thumb. (22) That is, noneconomic damages ("general damages" or "pain and suffering") is worth about

three times the actual economic damages (see Ross 1980, 110; Wolfram 1986, 528 n.21). The reality of settlements and verdicts does not seem to support this contention. There are no published studies of jury verdicts showing a pattern of noneconomic damages equaling anything close to three times economic damages. In two locales where juries routinely are asked to itemize damages, the best estimate of the ratio of noneconomic damages to economic damages is about one. (23)(24)Moreover, the most prominent feature of the data from both these locales was the tremendous variation from case to case in the ratio of noneconomic to economic damages; some cases produced very large ratios and others had ratios of zero (because the jury awarded no general damages). The fact that juries do not tend to follow a simple "three times specials" rule of thumb does not preclude adjusters and lawyers from following such a rule. But is there actually any such rule of thumb in operation? The simplest way of looking at this is to compare gross payments to gross loss (or average payment to average loss; the results are the same). Marter and Weisberg (1992, 464) reported that in 1989 in Massachusetts, $665 million was paid out for bodily injury claims, of which $246 million covered claimed medical charges, giving a ratio of 1.7; for 1986 the corresponding figures were $469 million, $155 million, and 2.02. These figures might be seen as consistent with a slightly different "three times specials" rule: total damages are equal to three times medical expenses. National data reported by the Insurance Research Council (IRC; formerly *818 9the All-Industry Research Advisory Council [AIRAC]), show that gross payments were 1.87 times gross loss in 1992 (IRC 1994, 79), 2.11 in 1987 (AIRAC 1989, 31), and 2.29 in 1977 (AIRAC 1989, 33). From these data, the best multiplier of specials to generals is right around one (1), which is similar to what the jury verdict data show. The IRC data do show substantial variations from state to state, with the ratio of gross payment to gross loss running from about 1.4 in Nevada to 3.6 in Wyoming; (25) in fact, the ratio IRC reports for Massachusetts is 2.23 (IRC 1994, 79), which, allowing for additional decline and for the inclusion of economic loss in addition to medical charges, is consistent with what Marter and Weisberg reported for Massachusetts. It is always possible to compute an average such as those reported above. However, the fact that there is an average does not mean that there is anything like a "typical" ratio (meaning some ratio that serves as guidance). The relationship between documentable economic loss and total payment may vary substantially from case to case in a way that makes "rules of thumb" meaningless. The fact that the published IRC data show variations from state to state can reflect differences in injury patterns, in law, or simply in local norms. It may also be the case the certain types of injuries are more problematic with regard to noneconomic damages than are others (soft tissue injuries such as sprains and whiplash come to mind). However, even with the most

"concrete" injuries, and even looking at a single state, one finds very substantial variation in the ratio of total payment to economic loss. Working with the raw, 1992 IRC data set, I selected cases from California involving fractures of weight-bearing bones. Nationally, IRC reports a ratio of total payment to economic loss of 1.67 for such injuries in its 1992 study (IRC 1994, 38). Taking only California, which had 76 such cases in the IRC sample, the median ratio is 1.97, with the middle 50% of the cases falling between 1.20 and 3.00 (i.e., 25% of the cases fell below 1.20, and another 25% were above 3.00). Looking at the distribution of ratios, nothing even vaguely looks like it is "typical"; there is not even something looking like a cluster of values. [FN25]
One of the best ways to maintain good relationships with clients is to avoid the bad clients in the first place. There are certain types of people that smart lawyers have learned to avoid representing whenever possible. This doesn't necessarily mean turning down cases where the lawyer disapproves of what the client did. The practice of law often involves representing people who have done really bad things, and some of those people can actually be great clients. People with certain attitudes and opinions can make a lawyer's life a nightmare if he or she makes the mistake of taking that person as a client. The following are some of the people that it would be wise to avoid representing. 1. The Angry Client. Is the potential client full of rage over what happened to him? Does he sound like he is ready to tear someone's head off? Just because that anger is directed at someone else right now doesn't mean it won't be directed at the lawyer in the future. If a client seems to have anger management issues, it may be best to stay away from him or her. There have been too many attorneys physically assaulted by angry clients to not take anger problems seriously. And even if the client is not physically violent, this type of client is far too likely to make a lawyer's life miserable. Some things are not worth the money, and that includes representing certain kinds of clients. The Vengeful Client. This is often the same person as the angry client, but not always. Often the vengeful client is the one who follows the mantra that "revenge is a dish best served cold." Some people hire a lawyer solely to make another person miserable. If the client seems more interested in hurting people than in achieving some positive goal, this may be a client to avoid. The lawyer could easily become the next target on the vengeful client's hit list. The Client With Unrealistic Expectations. In an article called How To Handle Difficult Clients, Justice Carole Curtis described four kinds of unrealistic client expectations: (1) expectations about service; (2) expectations about time; (3) expectations about costs; and (4) expectations about results. Before entering into an attorney-client relationship with a new customer, a lawyer should try to make sure the client has a realistic understanding of what to expect in each of these four categories. Miscommunication about any of these issues will likely result in an unhappy client and a confrontation when those expectations are not met. Establish the ground rules on what to expect up front. If the client persists in an unrealistic opinion of what

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to expect even after the lawyer has explained those are not realistic goals, perhaps it is best to let another attorney be the one to disappoint him. The Inappropriate Client. Law school does not spend a lot of time teaching lawyers how to handle when a client proposes exchanging sex for legal services. If a client wants to trade sexual favors for legal services, the lawyer needs to very quickly establish that this will never be an option in the attorney-client relationship. If the client accepts this rule and drops the idea, then there may be no problem in the attorney going forward with representing that person. However, if the client persists in trying to seduce the attorney or if the attorney believes he or she will yield to temptation over time, it is best to terminate the attorney-client relationship immediately. No lawyer should risk his or her entire legal career over a person who is only pretending to like the lawyer to get out of paying a bill. The Rude Client. Some clients are difficult to deal with, and that's actually ok. Lawyers should be tough enough to handle a difficult client from time to time without losing sleep over it. But the rude client is another matter entirely. A potential client who is rude is a client who does not respect the lawyer. The rude client is the one who will be pushy, demanding, and annoying. He or she will not appreciate the lawyer's work, will always be critical, and will never be satisfied. Every interaction with the rude client will be unpleasant, and when the case is over the rude client will want a refund. Don't waste time representing rude people.

These are not the only clients a lawyer should avoid, but dropping these five from the client roster will go a long ways towards making a lawyer's life much easier. Is there another kind of client that lawyers should avoid? Are you having problems with one of these types of clients right now? Talk about it with us in the Forum.

Avoiding the Caregiver Trap

Tips for Activity Directors
From Gloria Hoffner

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Over extending your limits as a caregiver could be unhealthy for you and for residents. Andrew Bret Wallis

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activities in nursing homes culture change mds 3.0

Ads Find A Foreign Husbandwww.AsianDating.comMen From USA, Canada, Australia Seek Ladies For Love And Marriage. Miracle Prayer Requestswww.ChristianPrayerCenter.comNeed a Blessing? Strongest Prayer Chain Online. According to Melody McHugh of Comfort Keepers, the caregiver trap is a term that describes that place in a human relationship where we feel trapped into doing something for a client when know we should not. Activities directors can get sucked into that trap. In this article we look at how to balance your caregiving and knowing your boundaries. Let's start with an example. Mary, the activity director of a large assisted living facility, sees Roger every day. They greet each other in the dining room as the smell of hot coffee and sizzling bacon fills the air and later at the morning gathering of the current events group. After lunch, he never misses chair dancing at 2 p.m. and often helps set up for the weekly movie shown after Fridays dinner. Rogers always has a smile, sometimes a joke, and is always seated next to his wife Rosie. On first glance a visitor might think, What a nice couple. And often Mary is asked, How long have Roger and Rosie lived in your community? Her answer, Roger doesnt live here. He lives at home, but spends every day visiting with his wife of 57 years, Rosie, who is a resident in our memory unit. Such love and devotion impresses visitors and it is a true blessing activity directors witness every day in communities throughout the country. However, to the trained eye, Roger and Rosie are also a deep concern because caring for caregivers such as Roger is a complicated problem, according to McHugh. We see it all the time. Husbands or wives are so devoted to their spouses care that they lose all their other social connections, said.

Husbands stop going to meet their buddies at the American Legion or the wife stops meeting her friends for breakfast after Sunday services because they feel guilty leaving their spouse alone in a long term care setting. They promised for better or for worse and they will do it even at the loss of their own active lives and sometimes their health. And when the spouse dies, the caregiver spouse is alone and doesnt know how to reconnect to their former lives. The act of care giving became a way of life for the caregiver. Over the years, boundaries were lost and the two people became one life. This caregiver dilemma is a problem for the loved ones of the residents activity directors serve and can also be a problem for staff, she said. Activity directors can often fall into the caregiver traps that many families experience. Professionals are provided with training on maintaining boundaries with clients and enforcing them. What instructors often fail to teach professionals is how to maintain and enforce boundaries with a client you might spend more time with than your own family. If you work at a long-term care facility you spend on average 8 hours a day of your life with the same clients every day. Every day you greet those clients, you talk with them about their life and yours, and you are in relationship with human beings. As a result of these relationships, she said, activity directors try to maintain boundaries, but then "it" happens. The client gets sick and has no family so you spend extra time off clock or you bring something special to him or her. The client heals and then expects it from you all the time. When you cannot do it, you explain it was one time thing, the client may get sad which makes you feel guilty, awkwardness sets in and now you have boundary issues with this client, McHugh said. Here are some tips on creating safe boundaries:

Limit the amount of personal information you share with the residents and families. One way to prevent sharing too much information is to change the subject or when asked a question about your personal life, turn the conversation back on the resident. For example, a resident asks, Do you have any children? If you choose to answer and say Yes, I have two and quickly turn the conversation back to the resident and say, How many children do you have? and try to get him or her talking about children and grandchildren, McHugh said.

Check with your co-worker before you do something extra for a client on your day off or your bring him or her something. Checks and balances with co-workers is always a healthy way to make a decision when it comes to boundaries. A co-worker may counsel you and remind you about what happened to the last staff person who helped this particular client, she said.

Leave your emotional baggage at home. Be careful you dont begin to project feelings

you have for your own mother or father onto the client you are taking care of. This can sometimes be dangerous for you and you may begin to react to certain behaviors especially with clients who are suffering from memory impairment. Often they lose their impulse control and say mean and hurtful things. Comfort Keepers was founded in 1998 and has grown to more than 600 franchised locations around the world by staying true to the founders' goal of providing quality, caring in-home care services that allow clients the opportunity to age in place. Suggested Reading

5 Bad Clients to Avoid Representing

How to Screen Out Problem Clients
From William Pfeifer, former About.com Guide

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Law Practice Management Ads 3-Minute Chakra Testwww.ChakraHealing.comTake the Free Chakra Test & Find Out Which Chakras Are Blocked... Family Problems?www.usapangpamilya.comFind resources and help for Filipino families Law around the worldnortonrosefulbright.comNorton Rose and Fulbright & Jaworski have combined. Ads Law firm in Mongoliawww.lehmanlaw.mnInternational law firm in Mongolia with full presence (+15 years) Gil Zvulony LawyerZvulony.caToronto Internet lawyer. Based in Toronto, Canada. One of the best ways to maintain good relationships with clients is to avoid the bad clients in the first place. There are certain types of people that smart lawyers have learned to avoid representing whenever possible. This doesn't necessarily mean turning down cases where the lawyer disapproves of what the client did. The practice of law often involves representing people who have done really bad things, and some of those people can actually be great clients.

People with certain attitudes and opinions can make a lawyer's life a nightmare if he or she makes the mistake of taking that person as a client. The following are some of the people that it would be wise to avoid representing. 1. The Angry Client. Is the potential client full of rage over what happened to him? Does he sound like he is ready to tear someone's head off? Just because that anger is directed at someone else right now doesn't mean it won't be directed at the lawyer in the future. If a client seems to have anger management issues, it may be best to stay away from him or her. There have been too many attorneys physically assaulted by angry clients to not take anger problems seriously. And even if the client is not physically violent, this type of client is far too likely to make a lawyer's life miserable. Some things are not worth the money, and that includes representing certain kinds of clients. The Vengeful Client. This is often the same person as the angry client, but not always. Often the vengeful client is the one who follows the mantra that "revenge is a dish best served cold." Some people hire a lawyer solely to make another person miserable. If the client seems more interested in hurting people than in achieving some positive goal, this may be a client to avoid. The lawyer could easily become the next target on the vengeful client's hit list. The Client With Unrealistic Expectations. In an article called How To Handle Difficult Clients, Justice Carole Curtis described four kinds of unrealistic client expectations: (1) expectations about service; (2) expectations about time; (3) expectations about costs; and (4) expectations about results. Before entering into an attorney-client relationship with a new customer, a lawyer should try to make sure the client has a realistic understanding of what to expect in each of these four categories. Miscommunication about any of these issues will likely result in an unhappy client and a confrontation when those expectations are not met. Establish the ground rules on what to expect up front. If the client persists in an unrealistic opinion of what to expect even after the lawyer has explained those are not realistic goals, perhaps it is best to let another attorney be the one to disappoint him. The Inappropriate Client. Law school does not spend a lot of time teaching lawyers how to handle when a client proposes exchanging sex for legal services. If a client wants to trade sexual favors for legal services, the lawyer needs to very quickly establish that this will never be an option in the attorney-client relationship. If the client accepts this rule and drops the idea, then there may be no problem in the attorney going forward with representing that person. However, if the client persists in trying to seduce the attorney or if the attorney believes he or she will yield to temptation over time, it is best to terminate the attorney-client relationship immediately. No lawyer should risk his or her entire legal career over a person who is only pretending to like the lawyer to get out of paying a bill. The Rude Client. Some clients are difficult to deal with, and that's actually ok. Lawyers should be tough enough to handle a difficult client from time to time without losing sleep over it. But the rude client is another matter entirely. A potential client who is rude is a client who does not respect the lawyer. The rude client is the one who will be pushy, demanding, and annoying. He or she will not appreciate the lawyer's work, will always be critical, and will never be satisfied. Every interaction with the rude client will be unpleasant, and when the case is over the rude client will want a refund. Don't waste time representing rude people. These are not the only clients a lawyer should avoid, but dropping these five from the client roster will go a long ways towards making a lawyer's life much easier.

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Is there another kind of client that lawyers should avoid? Are you having problems with one of these types of clients right now? Talk about it with us in the Forum.

Graphic design clients are often influenced by people close to them, and rightfully so. Its no surprise that clients may say things such as my wife wants the background blue, because most people take advice from their friends and family. For graphic designers, this can become a problem especially when the advice of these people goes against their design sense. When this situation arises, its important to respect the clients feedback but also address it appropriately so the project turns out as best as possible. A clients friend or family member is likely to have an opinion, but since they are not design professionals that opinion may not serve the clients best interest. If a client says to you my (insert family member here) says it should look like this, your first reaction may be to tell them that youre the designer, not their family member. This, however, will only anger a client and not do anything to help the situation. Instead, listen to the suggestion, and if you do not agree with it, explain why. Talk to the client about how each of your design decisions are deliberate and aimed at improving the project, reaching the clients customers and delivering the message. You can then explain how the clients suggestions could negatively affect those decisions. Of course there will always be clients that insist, but once they see you have their best interests in mind many will accept your design direction. Approaching each design disagreement this way will also improve your client-designer relationship and, hopefully, have them start to look to you for the expert opinion rather than their friends and family.