I’m Not Talking About Butter Here…
A mature and experienced attorney said something to me that was very insightful and interesting while I was in court: “I realize that there are two types of domestic lawyer. The first type are the type to want to get the job done for their client. The second type are the type that just stir the pot and cause controversy just so they can bill their clients.” Ladies and gentlemen, let me introduce you to the idea of the churn.
The subject and idea of churn always perplexed me when I was in public service. I did not understand this behavior at all, nor why clients seem to put up with it. Wasn’t our charge and goal as the client’s attorney to identify the issue, create and prepare a legal plan as to how to resolve the issue, then execute that plan as efficiently as possible so that the problem could be…you know…resolved? I mean, isn’t that why a client would go to an attorney? To help them solve their legal problem. I have learned that it is a little more complicated than that.
You would think that attorneys would want to address a client’s legal problem with the goal of as quick and expedient resolution as possible. A retired judge once commented to me that there was nothing as satisfying as closing a client’s case file and filing it away for the requisite retention period. Yeah! Ummm…actually…no? But, losing focus and venturing down rabbit holes in a case or litigation that won’t ultimately affect the resolution is wasteful and tedious, right? I am finding that while in theory and best practice it is wasteful and tedious, in reality I think this is precisely why some clients hire some attorneys and why some attorneys fall into the practice of churn. Can it really be that clients are attracted to attorneys who are known to churn fees and drive-up costs? Do some attorneys get pressured by their clients to churn? I wonder if they do. I think the issue has a couple of facets.
Facet #1— Churn as Offensive Strategy
I think some clients purposely want to engage in churn in order to make the opposing side run up costs and bully them into settling. Wait…so the client purposely wants to pay gobbs of money in legal fees in an attempt to bankrupt the opposing side so they will settle? Yes. So, if a client’s objective to a legal quandary is to bankrupt their way out of it, then the churn is exactly what they are in the market for. However, there are severe ethical pitfalls to this for the attorney. There are rules against filing specious motions and things that have no basis. Courts can sanction clients and attorneys for such practices. So, while the client may want this path, I think attorneys should really think twice about such a strategy.
Facet #2 — Churn as a Means to Feed the Anger
Certain types of practice seem to attract varying levels of angry clients. When it comes to practicing domestic law, I think it goes without saying that the level and number of angry clients is inordinately high. I have realized in practicing domestic law that a substantial percentage of clients often claim that they do not have the resources to engage in such acrimonious conflict. But when it comes down to it, they downright demand that their attorney run up their bill to prolong the conflict. What gives? I think this goes back to what I was saying in my post called “Tough Cookie” (posted on June 13, 2022). Are you a bulldog that will make my ex-spouse beg for mercy after you are through with them? If yes, how much do I need to pay so we can start our work?
I think clients have this idea about lawyers and the law. That in legal cases there are winners and losers. Yes. In some litigation, there are winners and losers. But in domestic law, that is not the case (in my humble opinion). Domestic law is all about intimate and close relationships changing drastically or coming to an end. There are rarely winners and losers in such a process. But I don’t think clients truly understand that; or want to for that matter. Hence, they often times demand their attorney engage in churn as a means to establishing to themselves that they are “right”. The more money they can throw at their domestic litigation means the more right they are. And I think lawyers (especially domestic lawyers) respond to this “demand” of their client by easily giving into those demands that drive up costs.
Facet #3—Churn as a “faux” Demonstration of Value
I think that churn also happens as a way to demonstrate to clients that an attorney and their work has tremendous value. This is the darndest thing to me. Often, clients will not equate high value to something unless they are paying out of the ass for it. Which is a huge myth. Just because an attorney charges $600/hour or has hefty billing practices doesn’t meant that they are a good value or that the client is getting their moneys worth. I am just keeping it real, y’all.
When I was a “baby” prosecutor, there was this notorious private attorney that strutted about the courthouse in expensive suits and carried around an expensive briefcase who touted themselves as this big time criminal defense attorney. I was totally intrigued to see how this attorney handled themselves in court considering their self-proclaimed reputation and penchant for having, what seemed, as very wealthy clients. When it came time for them to appear in court where I was the Assistant District Attorney assigned, I was not impressed. This attorney didn’t even know what certain dispositions were, nor how those dispositions affected their clients. But, I think this attorney utilized the idea of churn in order to justify their reputation. If I am charging or billing out the ass, of course I am worth it!
This is not to say that a lot of us out there ARE absolutely worth what we charge. But I think that churn can happen to unsuspecting (and suspecting) attorneys when they are trying to respond to the existing market that tells us that unless you are charging “x” than clients won’t believe that you are worth shit.
So, back to my original question: do clients ACTUALLY prefer the churn? You know, I don’t really know. But, I have learned that I have to accept that some people are not hiring me to help resolve their legal problem efficiently and economically. Some people are just hiring me to engage in an expensive war that they are all too happy to pay for to fight, if it lasts a lifetime. Count me out. I know I am writing a very controversial position right now, but I actually want to help people resolve and get through their legal problem as quickly, efficiently, and economically as possible. That is just me. To ME that is worth the premium. To ME that is what carries value and inevitably will result in a lucrative and fulfilling practice…which is the better practice…no?