When you are starting to practice as a lawyer, there are many tricks of the trade that get passed down: keep a clock on your desk to accurately track your time; Shepardize all case law before filing a motion; bring extra copies to the judge; and, everything rolls downhill. While there are a plethora of adages or tips on how to make it, one that gets regularly overlooked is the importance of sending “CYA” letters (“cover your arse”). A common misconception with these letters is that their sole use is to protect against a future scolding by a partner (it won’t); they actually serve a much greater purpose. Read on.
There will come a time when you have a client that simply cannot keep clear track of the various options presented to them. No matter how many times you explain something by phone or in person, jumble ensues. Even when a decision has been made, like clockwork, they will come back a week later asking the same questions, raising the same concerns, and engaging in the same debates, only to wind up reaching the same decision – it is like you are Bill Murray in Groundhog Day, albeit without Sonny & Cher playing as background music. Rather than perpetuate this exercise in futility, send your client a letter recapitulating your call or meeting and outlining the different options available (including risk/reward and potential cost/benefit). This will save you time and frustration and save the client fees. While this benefits the client, it will also allow you to develop a clear road map for the case. If you get lost on the litigation journey, just refer to the map to steer back on course. Of course, you cannot predict what may throw a wrench in your finely crafted plan by that nasty opposing counsel, but at least you (and your client) have a checklist to go back to once the dust settles.
Although there are many other uses for a CYA letter, they still are useful as stated by its namesake. We are at the mercy of our clients, who are the captains of the ship. No matter how many times you explain that 2 + 2 = 4, some clients will tell you they don’t care, it actually equals 5. They will say they don’t care about the cost. They will say they know you cannot guarantee any results and that you do not have a crystal ball to predict the future. They will say they know a Judge may do something erratic. They will say they understand the risks and are willing to roll the dice. They will say they believe in you and know you will do your best. They will say they would never file a bar complaint against you. They will say all of this, until the Judge rules against you explaining that, in fact, 2 + 2 definitely equals 4. Or, they will say “why didn’t you tell me that could happen?” All of the sudden, your client is angry with you, because in their mind, they are: disappointed in the results (because you guaranteed them a victory), does not want to pay for the costs incurred because it is way more than they expected, and never, ever would have gone forward if you had explained that they did not have a good argument or a chance of losing. Unfortunately, you discussed all of the risks over the telephone, because the client doesn’t like e-mail or you thought it would save you a few minutes.
Had you taken a little bit of time to prepare a clear (yet polite) letter to the client, this migraine could have only been a headache. In that letter, you would have stated that you do not believe they have a strong position, that you cannot predict the future, that this will result in incurring fees for preparation and appearance, that you advise against this course of action, that the candle is not worth the wick, etc. etc. Additionally, you would note that they want to go forward, that they are willing to accept the risks, and that they are directing you to proceed. With this, the client has the opportunity to rethink their decision and “correct” you if they believe you are mistaken. Now when they come to you raising fire and brimstone, you can forward that CYA letter and say “See Below.”
Who would have thought that those three little letters could be so important? This article does not constitute legal advice as to how to practice law or avoid bar complaints …sorry, just my CYA to you.