We must do our utmost to minimise client heartache
Lawyers must manage case expectations from the outset, finds David Buchanan-cook
It was Shakespeare who said that “expectation is the root of all heartache” – and like so many Shakespearean quotations, it’s an eternal truth.
For 21st-century professionals, there is a challenge; patients and clients expect doctors and lawyers to know everything there is to know about their subject and be able to ‘cure’ their health or legal problem. This is a level of expectation which is arguably heightened by internet access and the ever wider reach of social media.
While that cure-all may very well be the expectation, the reality can be very different.
As knowledge and complexity grow, the best professional will have limits to specialist areas. Even within that specialism, the perceived subject expert cannot know everything, and ‘cure’ is often not an option. In fact, the reality is frequently only being able to assist in some smaller way to help someone cope with their predicament.
The former editor of the British Medical Journal, Richard Smith, termed this ‘the bogus contract’ and saw it as a cause of unhappiness for professionals – and a major source of complaints by the public. That’s certainly something that strikes a chord with us in looking at service levels in the legal sector in Scotland.
On the one hand, there is a need for lawyers to manage the expectations of their clients from the outset – no matter how unpalatable that advice might be, for example, in relation to the probable outcome of their situation.
On the other hand, there is a need for clients to understand that there are limitations in what their lawyer can do and, more importantly, to appreciate that it is not a science of perfection.
This balance of shared responsibilities is one which we have recently highlighted in two new guidance documents which we issued to coincide with Day of International Criminal Justice earlier in July. These guides are aimed, respectively, at clients and lawyers involved in criminal proceedings.
For lawyers, we remind them that their Terms of Business provide the ideal opportunity to manage the client’s expectations from the start – they should explain who will be doing what and when and…where possible… at what cost. For the client, we focus on their responsibility to read the Terms of Reference and if they don’t understand anything, to ask questions. This is something which can be daunting for some clients where they see a power imbalance and don’t want to appear foolish by asking the daft laddie – or lassie – question. Here, again, the lawyer has a role to play gauging the extent to which the message is getting across and providing opportunities and prompts for questions to be raised.
Most lawyers in Scotland do provide excellent services and for the most part clients can approach those services with good, if not great, expectations. Further advice and information for lawyers and consumers – including the new guidance for those involved in criminal proceedings – is available on our website www.scottishlegalcomplaints.org.uk David Buchanan-cook is Head of Oversight and Communications at the Scottish Legal Complaints Commission.