Preparing and Managing Clients During Litigation: for COVID-19 Times and Beyond

The Bencher—January/February 2021

By Judge David W. Lannetti and Jennifer L. Eaton, Esquire

Preparing and managing clients during litigation has always been demanding, and the current pandemic presents new obstacles and additional complexity. Perceived informality of virtual proceedings, lack of face-to-face access to clients, and scheduling delays are changing the practice of law and impacting the attorney-client relationship. Proactively addressing these issues can improve expectations and prevent inappropriate client behavior in and out of the courtroom. And although these new challenges make managing client behavior even more difficult, professionalism and civility must prevail.

Manage Client Expectations at the Beginning of the Representation

When preparing clients for court appearances, it is important to remind them that their favorite television courtroom drama is not an accurate reflection of the typical courtroom experience. Judges will not tolerate rude behavior and will demand respect toward both the opposing party and the tribunal. This seems like common sense, but misconceptions—and ignorance—about the judicial process are common, and clients may have a difficult time understanding that reality is much different than the fiction they have come to expect.

Talking to clients to understand their impressions of the legal system and the judicial process is important at the onset of a representation. Unsurprisingly, different clients have different expectations. Some may be fearful of the judicial system and others may feel very self-righteous and expect that they have a “slam dunk” case. Having these conversations at the front-end of a representation—in order to educate clients—will pay dividends.

Recognize also that, to the extent you cannot meet face-to-face with your client, virtual client meetings may make it more difficult to have these serious and, at times, personal conversations. It may take multiple meetings to establish rapport, appropriately convey your expectations, and understand your client’s attitudes. Be patient—both with yourself and your client.

Prepare Your Clients in Advance of Court Appearances

After managing expectations, perhaps the next most important task is to appropriately prepare your client for the court appearance itself. This isn’t just a matter of reviewing the case facts and briefing him or her on the law; rather, it includes talking courtroom logistics and procedure. A practice run of direct testimony and potential cross-examination is important. And although you should adequately prepare the client, ensure attorney “rehearsals” truly contain the client’s answers and are factually accurate. For in-person proceedings, consider a pre-hearing “tour” of the courthouse. Also, explain the mundane but important basic courtroom procedures (e.g., where and when to stand, the swearing-in process, when it is appropriate to speak, from where to testify, the role of the court reporter).

Control Your Clients in the Courtroom

Fair or not, clients are a reflection on you as an attorney, and judges will expect you to ensure your clients act appropriately. That is why managing client expectations and preparing your client in advance are so important; be sure to review the consequences of improper courtroom behavior with your client. Clients also need to understand that you will act professionally, will demonstrate respect for the court and the judicial process, and will act civilly toward opposing counsel.

In response to COVID-19, many courts now are amenable to virtual appearances. Although the associated flexibility and perceived informality might initially appear attractive to clients, appearing remotely requires careful planning and preparation. You will need to coordinate with the court to get permission for your client to appear remotely and to understand the various associated logistics. Does the court have an installed camera in the courtroom? Is a specific software program required, and what is needed to access it? Who will provide the necessary hardware? How will you handle the uncertainty of exactly when your client needs to appear? And then there are the non-technical aspects: Who will provide the court reporter, and where will he or she be located during the proceeding? How will you handle the introduction of documents into evidence through your client? And finally, you will need to prepare your client by practicing beforehand. What will the background behind your client look like? What will your client wear (hint: pretend he or she is in the courtroom)? How will your client prevent interruptions and background noise? What is the backup plan if you encounter technical difficulties?

Especially in virtual proceedings, clients must understand that appearances and behavior can affect outcomes. When appearing virtually, the client should act as if the proceedings were physically in the courtroom. Not only does the court have contempt powers, but inappropriate and unprofessional conduct impairs credibility. For these reasons, be sure to advise your client regarding all possible outcomes from the proceeding, both to prepare him or her for the worst and to prevent any improper outbursts. Remote appearances almost certainly will be with us in some form post-pandemic, so it makes sense to learn how to do them now.

Manage Client Expectations During Uncertain Times  

The current pandemic has introduced uncertainty into almost every aspect of our lives, and the judicial process is no exception. You may wonder how you can even advise your client about trial-related deadlines when the future seems to be a moving target, but clients will look to you for guidance and reassurance. And if you cannot provide certainty, you can at least provide insight—and a bit of predictability—into the process, including what your respective court is doing to manage its docket. Delays are inevitable, but there are ways you and your client can create some semblance of stability, at least with respect to timing, whether that is by agreeing to a bench trial or allowing the court to rule on the papers without oral argument. Know what your local rules say and what your local court will allow, and advise your client accordingly.

Additionally, be sure to mention to your client the limitations of certain options. For instance, courts may be “stacking” trials or calendaring hearings on a really tight schedule to accommodate as many litigants as possible, especially as they attempt to work through the backlog of COVID-19-affected cases. This means there may be less time allotted for an oral argument. Address this early with your client so that your client can prioritize any desired testimony and not be caught off guard when the judge rules on a dispositive motion after only 15 minutes.

Remember that Professionalism and Civility Must Prevail

Managing client expectations and behavior have always been important aspects of legal representation, but with personal, professional, and social stressors on the rise, these aspects of the client relationship are more important now than ever. Heightened stress levels can make an otherwise typical client representation take a turn. Participating remotely—without the grandeur and solemnity of the courthouse as a reminder of expectations—brings additional challenges. Have the difficult conversations, make your expectations known to your client, and never forget your obligation to act with professionalism and civility. The practice may be changing, but our commitment to treat others with dignity, courtesy, and respect should not waver.
 
Judge David W. Lannetti is a circuit court judge in Norfolk, Virginia (Virginia’s 4th Judicial Circuit). Jennifer L. Eaton, Esquire, is a civil litigator at Vandeventer Black LLP in Norfolk. Lannetti is a past president of the James Kent American Inn of Court where he and Eaton are current executive committee members. The views advanced in this article are those of the authors alone and should not be mistaken for the official views of the Norfolk Circuit Court or Vandeventer Black LLP.
© 2021 Judge David W. Lannetti and Jennifer L. Eaton, Esq. This article was originally published in the January/February 2021 issue of The Bencher, a bi-monthly publication of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the written consent of the American Inns of Court.