A Little Something in Writing to Remember It By

  • October 12, 2014
  • Simon Fodden

Every now and then it is “improving,” as the Victorians used to say, for a lawyer to be caught up in the toils of another profession, in order to recapture the client experience of uncertainty in the face of an opaque problem. I’ve had the fortune, recently — I wouldn’t label it “good” — to be in that situation and it has occurred to me, not for the first time, that there is a way to make the experience better for the lay person, a way that is all too seldom taken. My small suggestion is that professionals who deal with clients consider preparing printed material for the clients to take away with them, material that will help them understand what is going on.

There’s a perfect storm of reasons for these “hand-holders,” as I call them.

  • The client is dealing with a complex problem with which he or she is unfamiliar, and a carefully thought-out, written explanation will be better expressed than an oral one.

  • The professional is always busy, not to say rushed: time is money or scarce or beyond the professional’s control. Hurried explanations often are the result, where much can be omitted.

  • The client is likely stressed, typically because professionals are consulted only when there’s a serious problem or plan; and emotional stress does very bad things to clear thinking and to memory. We forget to ask certain questions — forget, even, to consult our list of important questions — can’t remember the answers, or, worse, think we remember but get it wrong.

  • The professional has to translate out of jargon and into the client’s vocabulary — or, indeed, into a language other than English. When this is done in the moment, it can be a haphazard matter, and there’s plenty of room to under- or over-estimate the client’s ability to understand.

  • The client may well feel inferior because he or she can’t fix or even understand the problem without help. This can lead to faking comprehension and to suppressing questions that might be thought too simple or “stupid.”

In many cases the quality of a professional-client meeting would be improved by being able to give the client something in writing to take away, something, perhaps, even to refer to during the meeting. This “something” might summarize aspects of the client’s situation (all client problems have elements of a routine nature in them), give the client things to think about before a follow-up meeting, point to reliable resources that could help the client get an even better understanding of the problem — and even invite feedback on the meeting that’s just occurred.

Of course, in the case of law, hand-holders would be more useful in areas of practice that deal with real rather than corporate persons; but even with the latter, I can see some real utility in a lawyer’s being able to provide straightforward written material on some standard situations: “contracting for services,” “leasing in a shopping centre,” “developing employment contracts,” and so forth.

There will be reasons why these hand-holders aren’t in use more often than (I suspect) they are. It takes time to distill the essence of a legal situation and to put it into good, clear writing, time that no one is paying for, up front at least. Professionals, understandably, think highly of themselves, part of which entails a belief that they give good meeting, that they’re good at clear explanation in the moment. My guess would be, however, that the last time these sorts of assumptions were checked out rigorously by outside examiners was never. Professionals also focus, of course, on the unique aspects of a client’s situation — that’s where the action might be — and so they may tend to forget that every unique problem rests atop a bedrock of quite stable material that could be laid out in writing for the client.

Modern technology introduces some factors that could make hand-holders even easier to produce and even more useful. Thanks to the internet, cooperation among firms or lawyers within an umbrella organization is dead easy; producing hand-holders as a cooperative effort would take some of the burden out of it. It’s nothing, technically, to pour general text, then, into firm-branded moulds. Online versions could contain hyperlinks to the chosen resources. And, given the ease of document assembly and printing, a lawyer could even compose a “What Just Happened” hand-holder in five minutes after a meeting by selecting elements from a list that could be ready for the clients by the time they’ve got their coats on.

Serving the client well is reason enough to produce hand-holders. But there’s a return to the professional, too: hand-holders are tangible symbols of the help that’s being given, of the work that has been and will be done on the client’s behalf, work for which the client is grateful each time the hand-holder is read.

Simon Fodden is the founder of Slaw. He taught law at Osgoode Hall Law School for more than 30 years before he retired to focus on writing, publishing, and IT and law. This article first appeared on Slaw and is reproduced here with permission from the author.