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Are you being heard?23 April, 2019
Do your clients hear you when you advise them about agreements that are against their interest?
Clients often say when they make a claim they received no or inadequate advice before entering into agreements like providing guarantees for family members or entering into family law financial agreements. This complaint is common, despite their practitioner signing a solicitor’s certificate stating advice was given.
The client’s recollection is often that they were in the lawyer’s office for ten minutes, they received no or minimal advice and then they signed the agreement. Conversely the practitioner says they spent about an hour or more with the client, went through the agreement and explained the risks and the client appeared to understand.
How could the recollections be so different?
While a contemporaneous file note of the meeting helps confirm the practitioner’s recollection and jog their memory, where does that leave the client’s account of the meeting? Has the client just not heard or retained what the practitioner said?
Very often the answer is yes. There are many reasons why a client won’t hear or retain what a practitioner says.
We know that everyone has a preferred method of learning and taking in information. For some people they need to hear it, for others they need to read it and others are visual learners and need to see diagrams and pictures and others need to learn by doing. To meet your client’s needs give them the message in as many ways as possible.
Neuroscience studies have shown that humans make decisions using two different decision-making centres in their brain. They are commonly called system one and system two[i].
System one is the primary decision-making centre and is the primitive, instinctual part of our brain. It makes decisions instantaneously and subconsciously. It is where the saying ‘gut instinct’ comes from.
System one also has aides to help make faster decisions called biases. The most relevant here is the confirmation bias. It helps system one to only process information confirming what the person already believes. Your client believes that their husband or child is a good, honest, smart business operator so they only hear that the guarantee they are entering is no risk, just paperwork, hurdles the bank want them to jump through.
System two decision making is really the ‘stop and check’ on system one decisions. It is the rational, conscious decision verification process and people need time for this to occur.
Where possible insist on clients sleeping on it after giving them important advice – at least overnight. Always ask the client, what they understood the worst-case scenario or biggest risk to be and write down their answer.
Fight or flight
Visiting a lawyer can raise stress levels especially where dealing with issues that, while not considered to be risky, are outside the person’s area of knowledge or comfort zone. The impact of stress can move us into the fight or flight state, which increases the level of cortisol in our body, which impairs our ability to think clearly and to remember.
Telling your client something in a meeting does not mean they are going to fully understand what you said, or that they will recall what you said later.
Try and put your client at ease when they come to see you. Prepare written material for clients to read before or after your meeting with them, setting out the risks and issues as clearly and simply as possible. Many of these documents can be prepared as precedent documents that just need to be tweaked for each matter. Use diagrams if you can to show concepts and risks. Make the most important pieces of advice prominent in the document. An audio recording of the meeting they can listen to later will help them revisit and remember what was said.
Always make a contemporaneous file note of the meeting with the client and record the substance of what you said and what the client said. See sample file note on LPLC’s website here.
For further tips see the article by Nora Rock, at LawPro, Put your best brain forward.
[i] Daniel Kahneman, Thinking, fast and slow, Farrar, Straus and Giroux, 2011
Nora Rock, Put your best brain forward, LawPro Magazine February 2017