Don't Make Promises to Your Clients

My family and I were recently driving home from a camping trip and made a stop for some lunch along the way. The kids asked if we could also get some ice cream and I said “Sure we can try to find a spot for some ice cream.” Of course, my kids understood that to mean that we would absolutely be getting ice cream on the way for sure and without a doubt. As the drive went on, my wife and I were getting tired and ready to just be home to unpack etc. I told the kids, “hey guys we are just gonna press home and I don’t think we are gonna be able to stop for ice cream…” to which they grumpily replied, “but you promised we would stop for ice cream!” We didn’t stop for ice cream and they were mad. In retrospect, while initially non-committal on the ice cream issue, I had set some pretty high expectations for ice cream in their minds which lined up for trouble when ice cream did not materialize.

The whole ice cream debacle got me thinking about an issue that I have been running into occasionally in attorney malpractice claims – a client’s initial outcome expectations. Underlying settlement expectations can make settling a later malpractice claim more challenging. It is important that attorneys have detailed conversations with their clients in advance of settlement negotiations so that in the unfortunate event that a statute of limitations is missed or some other malpractice claim is made, the clients understand what you believed would have been a reasonable settlement. Attorneys should document those conversations in their files via billing entries or other memoranda to the file or even add a box to their litigation checklists.

The bottom line is that if you believe your client’s case has a settlement value of a particular amount or within a defined range, make sure your client knows and understands that. Also, ensure that your file clearly reflects those conversations so your claims attorney or defense counsel can include a documented and supportable argument that you had provided the client with your estimation of settlement value. In my case, I wish I had recorded the conversation with my kids where I told them ice cream was a possibility and not a promise or a guarantee. Instead, I just ended up taking them to get ice cream after we got home.

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Authored by: Chris Fagan, Claims Attorney

Chris Fagan joined the ALPS Claims Team in 2015. He is a graduate of the University of Montana School of Law. In addition to his years of experience in private practice as a civil and commercial litigator, Chris also has experience in land management from both the conservation and ranch real estate sides. When he’s not helping ALPS-insured law firms through the claims process, he’s rowing his raft on one of Montana’s many rivers or cutting fresh tracks on the ski hill.