Transcript

Party bus · Coopers' Code

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Howdy and welcome to the show. Cooper's code examines a legal
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issue and hits the highlights so we all achieve the best results
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for our clients. I'm Miles Cooper, and with
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today's guest, Brian Vicks, one of our talented attorneys at
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Cooper's. We'll be discussing
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considerations when representing multiple clients in the same
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case. Before we get into today's
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topic, a few words about Cooper's LLP.
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We at Cooper's are committed to thought leadership, developing
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the best talent and honing skills through learning,
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practice, trial, and the relentless pursuit of justice
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for consumers with lawyers licensed in California, Oregon
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and Washington. We're available for free
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strategic consultation on cases and we accept referrals and
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trial Co council opportunities. For more information, visit our
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website at Cooper's dot Law or e-mail us at Podcast at Cooper
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Staff Law. Brian, welcome to the show.
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Thanks for having me. My pleasure.
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Today we're talking about representing multiple clients in
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the same case. Have you had experience to deal
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with that? I have, yes.
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Without breaching any client confidence, can you outline a
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little bit of your experience in that regard?
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As an attorney, I have had a few cases where I have represented
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husband, wife or a minor child with parents involved as
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guardian adult items. In a couple other cases where
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there have been a couple plaintiffs all in the same
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action as a paralegal, I was a paralegal on a case where we had
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in excess of 16 plaintiffs on a case at one point in time in a
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what we would have called then a cluster action, cluster action.
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I think that a cluster action is a loosely defined term that.
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Usually I hear the word cluster with something else.
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I'm curious about that. I have not heard of cluster
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action before. What is a cluster?
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Calls a case that doesn't qualify as a class action, but
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that has more than a few individual party members of a
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growing theme for A cause of action.
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Interesting. This is what I love about the
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law. You're always learning something
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new in the area of representing multiple clients.
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What are some of the concerns that you have as an attorney
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when a case like that presents itself?
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The obvious red flags are confidentiality and dealing with
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getting everybody on board. Knowing the direction that the
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case is going to have to go and where we're going to be taking
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it, those are the big red flags. But I think that once you start
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to get into the nittygritty of a case, there are significant
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things that are going to be coming up, particularly the more
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plaintiffs that you're dealing with in a case, you are going to
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be dealing with more opinions, more people that you are going
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to have to get on board. And on top of that, if one
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person happens to, say, pass away, they're going to have
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successors and interest. And so now you're going from 1
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plaintiff to 234 successors and interest that all have a
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interest at stake in this cause of action, which now you're
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gonna have to deal with even more people in the category of
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addressing confidentiality. Why don't we go down that path
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first? Say you're representing multiple
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clients and and you're being asked at the outset, hey, you're
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considering representing me and a few others.
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What happens to confidentiality if I tell you something in
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confidence? There is a potential that I
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can't maintain confidentiality, having multiple plaintiffs,
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multiple clients representing 1 action.
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If you're talking to me about something, if it's going to
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affect other parties, there is a potential that that is a
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conflict for me. And can you give me an example
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of how that might play out? If you were a husband and a
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wife. And at the onset there was a
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loss of consortium claim. And then later on down the road
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in the litigation, you as a married couple decide to
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separate or to divorce. Now there is a actual conflict
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between you and your ex-spouse or the individual who you are
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separated from or are in the process of getting a divorce
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from. That makes sense In that
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scenario, let's say you're preparing the husband for
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deposition and the husband says, look, I'm concerned that this
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may come out in terms of, you know, whether I've been followed
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or what have you and need you not to tell my spouse I've been
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having an affair. How do you handle that?
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That's a conflict, and at what point in time you have to abide
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by your ethical duties and make sure that you're handling the
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situation correctly. I can't be keeping things from
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people who are on the same cause of action that I represent at
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the same time like that. I can't keep it quiet all the
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time. And at which point in time, if
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this becomes a conflict now I'm going to have to get another
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lawyer involved. And I'm going to have to excuse
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myself from representing both sides.
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And I think one of the things that we frequently see and and
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we'll see it in either a knowing waiver of conflict, meaning a
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written document that people sign when they're agreeing to be
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engaged by one lawyer for multiple people, is they'll
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describe what's known as a potential conflict of interest
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versus an actual conflict of interest.
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Correct. And you just outlined, I think a
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potential conflict is if a husband and wife have the same
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lawyer for the claim and the loss of consortium claim.
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There's always the potential if a Fisher arises between the
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husband and wife, it becomes an actual conflict when there's an
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actual Fisher where they're getting divorced or they're
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having some form of dispute, and is it at that point that they
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have to get another lawyer? Yes, OK.
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Are there any written requirements for disclosing
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conflicts of interest? As my ethics professor would say
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back from law school, most of the time written and informed
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consent will cure all. But for potential conflicts you
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do need to outline what the potential of conflict is going
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to be. I need to have both parties or
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all parties involved informed and written, and give you
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consent to proceed representation with that
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knowledge and understanding. That makes a lot of sense.
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Do you have a best practice recommendation in terms of
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whether that is something that is baked into a form
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representation agreement or a separate document?
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I think that both should happen. I think I've seen fee agreements
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and representation agreements where it has been included
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standardly. I have also seen it be very
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clear at the onset that there is a potential for conflict and an
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attorney go above and beyond and make sure that there is a
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separate additional document just to essentially see why a.
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And make sure that you have everything correctly.
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All your i's dotted, your t's crossed.
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The other example that sometimes comes up in potential versus
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actual conflicts of interest is the situation where one learns
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there is a limited pot of available compensation.
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Have you had that situation? Yes, and how do you handle that?
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It becomes a very uncomfortable conversation.
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People tend to not always handle conversations with money the
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best. And when you start saying there
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are limitations with, there's no way around saying it, but
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sometimes people tend to get greedy and it causes conflicts
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because now there's an adversarial issue where people
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want more money and there you have conflicting interest.
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When there's a limited amount of money and you can only have
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$100,000 going one way, where is it going to go?
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One of the recommendations that I got early on in my career was
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to address this head on at the beginning.
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And it's whether one is representing all of the
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potential clients in one case or whether it's with multiple
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lawyers that there be some form of agreement about how to divvy
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up the proceeds if the proceeds end up being limited.
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And to that effect, an agreement to mediate and if not mediate to
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go to binding arbitration to divvy up limited proceeds.
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Have you come across those? I have at our office.
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Well I think I've arrived at that through the pain of having
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to have an argument at the end as opposed to it being
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theoretical at the beginning. So when it's theoretical and
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theoretical money, people tend to be more open and more willing
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to say yes, this is something I'm willing to do and and to
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describe how that looks like. It's an agreement that says if
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it turns out that the money is limited, we will agree to
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mediate the outcome of the pile of money.
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If we can't agree to it and if mediation is not successful,
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then we agree to go to binding arbitration.
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And I recognize that my lawyer can't represent all of us.
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I will either get separate counsel or I will represent
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myself for that binding arbitration process.
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And in doing so, you have built the frame for an inexpensive
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dispute resolution process. And when you do it at the
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beginning, people will say, Oh yeah, that that sounds perfectly
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reasonable. When everyone realizes at the
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end that there's only $100,000, it becomes much harder to enter
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into that agreement. And then I think that's why
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we've approached it that way. It's just easier to do at the
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outset with the problems that sometimes arise from potential
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conflicts of interest going into actual conflicts of interest.
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What reasons would you outline for a client as to why it is
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useful to actually have joint representation?
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Cost. One attorney probably is also
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going to have a better understanding of the case.
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Easier to communicate with, easier to have a relationship
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with. If I'm one attorney and I'm
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handling 2 individuals that I'm representing, it's easier for
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them to get into communication with me.
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It's easier to coordinate depositions.
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It's easier for one office to handle discovery.
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And it's going to be a better outcome typically because it
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gives me a larger amount of capital to negotiate on behalf
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of two individuals versus having to negotiate for one person as
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well. As I don't have to get another
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plaintiff's attorney on board, I might not see eye to eye with
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another plaintiff's attorney on the evaluation of a case where
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we're going. My client might have a stronger
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claim in the case versus the other plaintiff.
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Those are considerations that you have to take into account.
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You brought up how working with another lawyer or working with
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other folks can create problems in terms of communication.
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Have you seen situations where the failure to properly
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communicate or work with outside other counsel has resulted in
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there being problems in the case, in that people are saying
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different things about how an incident happened?
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Yes, I've seen different stories, different reenactments.
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Different relays of information regarding the facts and
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timelines of how an accident might have happened.
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Another thing that I think that I see a lot of time is it
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creates a lot more air for clerical issues or
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administrative issues, not scheduling or forgetting that a
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depot is happening. Having to coordinate 2 attorney
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offices with a doctor with the person who is noticing the
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depot. Is a lot more complicated than
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only having to deal with two attorney offices and one doctor,
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when a doctor isn't going to give you a very large amount of
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time to schedule a deposition to begin with.
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You talked about costs. I want to dive into that a
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little bit because I've seen different firms handle costs
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different ways. There are costs that are common
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to the case, and they're also ways to deal with the allocation
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of those costs. My recommendation typically to
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clients is to have those joint costs shared on a pro rata
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basis, meaning in the fee agreement in the beginning of
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the case. If we're going to spend $100 on
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the case and you get $70.00 and she gets $30.00 that the client
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who gets 70 pays 70% of the cost.
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Have you seen firms handle it differently?
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I have seen firms handle it that way.
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I have also seen firms handle it where the clients costs are the
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clients cost. And it does not matter how much
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they're going to get. But that's just cost $400.00 for
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a copy of your deposition transcript.
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It's going to cost you $400.00. I don't think that that benefits
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them, but I have seen it done that way, Okay.
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Then there's also the breaking out of things that are costs
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that are specific to one client versus another client.
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And here you might have a situation where we've got that
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loss of consortium example, one client may have a lot of medical
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records and ordering all those medical records can get very
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expensive and another client has zero medical records.
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And how you allocate those individual costs to each client
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versus a joint case cost? How have firms that you've
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worked with handle those in the past?
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I have seen one net where if it's a couple and they have made
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the agreement that they're just going to share equal in the
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cost, it's not a big deal for them.
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As long as it's in agreement in writing, they understand what's
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going on. I have also seen situations that
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we have had to take particularly detailed notes, knowing exactly
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where each penny is going in regards to each plaintiff on
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each case because that is where the pot is going to have to be
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reimbursed for our costs from. And on the particular approach,
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starting at the outset, opening in essence 3 matters, which
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sounds silly, but three matters for two people, one for the
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joint costs police report, an expert on liabilities, someone
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who's a proof piece, and then the two others, one for client
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A1, for client B, and then it gets allocated very easily at
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the beginning and it's much easier to close up the case at
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the end, Correct. The final thing to ask you about
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is preparing individuals for deposition.
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Do you typically prepare them in a joint session?
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I have done both. I have found sometimes doing
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both as helpful. As long as there's nothing that
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I need to be aware of and there isn't a confidentiality or a
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conflict. I have also found that sometimes
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doing it individually is better for them because it gives them a
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sense of having more private one-on-one time, building their
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confidence and doubling down, basically knowing exactly what
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the facts are. How do you approach that then?
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Is it on a case by case basis? It would be on a case by case
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basis sometimes also if it's a husband and a wife for example.
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They might prefer to do it together.
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At the same time, it might be more convenient for them on
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their schedule as well. Raising children, working,
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especially here in the Bay Area. Those are things that you have
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to take into consideration too. And something like a depot is
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largely determined by the amount of prep time.
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And you do a good amount of prep.
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You prep the clients, you know the facts.
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You're prepared for it. The more time you put into that,
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more likely your depot is going to go better.
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And sometimes doing that together, you have to make sure
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that you put the time in and people that are here in the Bay
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Area, it's expensive to live. People are working, people are
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raising family. They don't have a whole bunch of
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time. Sometimes you have to do it
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together. Also when they're together, if
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there is some sort of an issue, and I think of this because it's
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come up for me more than once, where there may be a
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disagreement on the loss of household services analysis.
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Here's what I mean by that. Someone may think that they do
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more around the house that they spouse thinks they do, and
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having that come up in a joint session, so that is in agreement
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when they're both asked the same questions about that is an
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easier way to head that off at the pass.
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It can. I'm also slightly scared that
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that might result in some therapy that might be needed
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afterwards because husband or wife might have a disagreement
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about what they think they're going to be doing As it has come
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up, as long as I can make sure that people are hearing each
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other and we can hash through it and make sure that people are on
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the same page, I find that that's going to lead to a better
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outcome. Are there other things that you
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take into account when having that pro con conversation with
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clients on joint representation? The logistics, coordinating,
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making sure that they're on the same page, and I think setting
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case expectations are important. That people have an
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understanding of what they are looking for, what we think, how
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we think we can help them and what we see.
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The end results being in some kind of form of a ballpark,
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everyone being on the same page and being transparent and good
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communication, I think is what's the most important thing.
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And I think that that is probably the most pro thing
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about jointly representing people.
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It creates less of a barrier of communication, less of red tape
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that you need to go through in order to get an answer from an
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attorney. That'll make sense.
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The one other thing that I would say is when you're representing
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multiple people, I think the logistics are very important.
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If you represent 5 people and you're going to trial trying to
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coordinate five families or their members or witnesses for
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those people, it's going to be a administrative hurdle and you
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are going to need significant staffing help in order to make
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sure that you have people showing up where they're
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supposed to show up, do what they're supposed to do up here
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for their depositions like they're supposed to.
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And the more people that you add into the mix, the more
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complicated it becomes, the more time consuming it becomes.
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You have to learn how to be able to handle individual people and
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know how they're going to take a request.
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And there's a very large human dynamic to representing multiple
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people in one cause of action that I think sometimes you lose
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that human person to person relationship element to the
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interaction. So my take away from that is
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while there may be more people to work with, one needs to
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recognize that this is not a catapult, that each one of them
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is a human needs and the willingness to work with them
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and their schedule to help them understand what they need to do
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and how to do it. Yep.
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And how you address one person is definitely not going to be
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how you're going to address everybody else.
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Other techniques that you've come across to work with
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multiple clients in the same case.
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I really just think building a good relationship at the start,
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the sooner that you can get to the point where your client
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feels comfortable calling you by your first name and they ask you
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to call them by their first name signals to you.
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You're building those foundation blocks of a relationship of
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trust and communication. And hey, like I really need you
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to call me back here. Like we need to discuss this.
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I think those are probably the most important aspects of it.
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If an attorney was to ask you what have you found to be the
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best one or two things for establishing that were poorly on
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the getting people to feel so comfortable as to call you by
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their first name to be willing to pick up the phone, what would
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they be? That's really hard for me to
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answer. For me, I think it's just being
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myself. I really enjoy interacting with
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our clients. I really enjoy building the
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relationships with them and talking to them, seeing how
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their day is, seeing what's going on in their lives.
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How are you progressing with your injuries?
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Like, are we making steps in the right direction?
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And for me that's really natural.
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And I try to calm people down and understand that they're
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going through a really, you know, crappy situation.
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How can I lighten the mood? And for me, I don't really have
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an answer to that. I think that that's just kind of
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my personality is I like to talk to people and I like to warm
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them up. I would try and maybe describe
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that as maybe attorneys have a little bit better bedside
20:03
manner, a little bit warmer ability of approaching somebody,
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a little bit more emotion versus sometimes lawyers tend to think
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things too analytically and take emotion out of it, maybe be a
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little bit more emotional, tap into your heart a little bit
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more. So you're saying help humans by
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being human? That's a good slogan.
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I will confess that sometimes when I get on the phone with a
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client, I will be so anxious to convey the information that I
20:33
forget some of the basics. I usually remember it by the end
20:37
of the call. And the way I have come to deal
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with it is to recognize that and say, Oh my gosh, I'm completely
20:44
lacking humanity. I called you up because there's
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this issue in the case and I want to communicate it.
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I didn't even start with how's your recovery going because that
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is important. How are you doing?
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And the nice thing I will say is usually forgive me by that
20:58
acknowledgement, but it's unfortunately we sometimes just
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get so hardwired into that lawyer I'm going to fix this,
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that the human element doesn't come forward.
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Anything else do you think people should know just?
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Have a little bit of patience when you're dealing with the
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case with multiple clients, sometimes as an attorney, and
21:15
waiting for other things to happen and waiting for some
21:18
other responses to be responded to.
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I might not be able to give you a response immediately because
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there are other things that are coming down the pipeline that
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I'm waiting for a response for. I need to be in communication
21:31
with a couple other people. So the more clients or the more
21:35
plaintiffs there are in a case, sometimes it also does cause
21:39
delays. So if I'm just working with one
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individual, put my feet to the fire, if I'm not responding to
21:45
you that's on me. Sometimes be able.
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I'm going to need clients to be a little bit more patient,
21:50
understanding that. I'm trying to manage a few
21:52
people here. And do you convey that at the
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outset, so that they their expectations are set
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accordingly? I try to.
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And I try to remind people at the same time as it's coming on,
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and I try to be very transparent with it as an attorney.
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Also, I need to recognize that people want fast results.
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People do want to be responded to.
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That might be a hey, I received your e-mail.
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I don't have a response for you. I will respond to you as soon as
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I can. And that might be the response
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that I have to give to them immediately.
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Hey, I'm sorry I don't have an answer for you right now on
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this. I will get back to you as soon
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as possible. I received your message.
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I'm not forgetting you. You're not on the back burner.
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I will get back to you as soon as I can.
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I just don't have an answer for you right now.
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When I I think you raised an important point because
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sometimes the attorney approach and then this is one of the most
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common complaints to the State Bar.
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My attorney doesn't get back to me.
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The attorney approach is to recognize they don't have an
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answer and to just not respond. So I I think your way of
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handling that is wonderful. Well, thank you, Brian, for
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being here. Thank you for having.
22:57
Me again and thank you for listening today.
23:00
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