Tradecraft tips

Client anxieties

Next to getting divorced, moving house is the most stressful thing that many people can do, and accordingly, in sale and purchase transactions you have to appreciate that your clients may be in an anxious frame of mind. In the wider context of legal work, in my experience what really petrifies clients is when they get the impression that the solicitor is casting them out into the wilderness. 

This is like going to your doctor when you know there is something wrong with you, and being rebuffed. You are asking yourself “What do I do now? Where do I go?” If at all possible you should try to avoid throwing any problem back onto the client if there is any input you can provide. 

Someone once said: “No question is stupid if you do not know the answer to it.” Clients should be encouraged to ask for guidance or clarification on any point at all relating to the transaction, no matter how trivial. This is all part of the service we should be giving to our clients. In addition, what the clients do not like is last minute surprises, so whatever information has to be imparted in relation to the matter in hand should be communicated to the client sooner rather than later.  

Fee charging

If a photographer is taking a picture of a group of solicitors and he wants them to smile, he does not ask them to say “cheese” but “fees”. 

Many solicitors have a standard narrative for fee notes and this is all very well, but care needs to be taken that when a fee note is issued there is nothing in the narrative that was not actually done in the transaction in question. I had a case once where a qualified assistant had issued a fee note for a remortgage using a purchase narrative, and he left in “delivering keys to you”. If your narrative mentions 10 things and two of them were not done the clients will get the impression that they have been overcharged. My narratives are composed from scratch after an examination of the whole file. Everything that is in the narrative of the fee note can be fully substantiated.

Those little extras    

So-called “commoditised legal services” have their place in the modern world, where many people have a two-dimensional view of certain things to the extent that price is the only determining factor in making a choice from what is available. 

I was once in another solicitor’s office waiting for a closing date and a man was there collecting a schedule of particulars for a property. He said to the receptionist: “I am very keen on this property. I will have to get a solicitor to put in an offer. I suppose one solicitor is much the same as another.” It was on the tip of my tongue to say “Yes, that is correct, just as one football team is the same as another.”

How do you counter an attitude like this? You have to demonstrate to your client that you are taking an interest in their work and it is not just something that is moving along a production line. One way to do this is to try to put things into emails that go beyond your remit. 

A client resident in England was buying a rather unusual building out in the country. I sent her a copy of pages out of a book from the early 1950s giving comprehensive information about the locality, which included a brief mention of the building in question. The client appreciated this. On another occasion, a client from the north of England was buying a house in the Western Isles with a Gaelic name. I worked out what the name meant in English and passed on this information.

I preface extra items like this with the words “At no cost to anyone”, just in case an unappreciative client gets the impression that I am trying to generate extra fees by involving myself with what they regard as trivia. 

Sources of information: 1

The Bible tells us “Seek, and ye shall find.” Clients were offering for a house with a conservatory, but there was no indication of when this had been built. I went onto the database at the Aberdeen Solicitors Property Centre to see if I could find the schedule of particulars for the previous sale – if it did not mention the conservatory then obviously it would have been added by the current owners. 

The schedule had a photograph of the house and there was a car sitting in the driveway surrounded by tall weeds. This raised my suspicions and I then dialled the address into YouTube and up came film footage of people going into the house in white boiler suits to carry out a forensic examination of a crime scene. The previous owner had been murdered and his body had been in the house for a number of weeks before being discovered. By the time the executors were in a position to advertise the house for sale the car had been sitting in the driveway for a considerable time, but nobody had thought to tidy up the garden and driveway before the photographs for the schedule were taken.

The clients were informed and they instructed us to withdraw the offer immediately.  

In another case, a title deed from the late 19th century mentioned a property called Spring Garden Cottage, but the current map and indeed the second edition Ordnance Survey map from 1902 only showed a house called Springbank. Going back to the first edition OS map from the late 1860s indicated that the house at that time was called Spring Garden Cottage, so the mystery was solved.  

Sometimes a little bit of detective work is required to gain a better understanding of the matter you are dealing with, and knowledge of what sources of information are available is the key to this. Such sources can be old Ordnance Survey maps, local authority archives for valuation rolls and building warrant plans, and local authority websites for planning applications, etc. If you are acting in a purchase, do not rely on the selling solicitor doing the research. They may not have as much enthusiasm as you have and they may not know as many potential sources of information. 

Sources of information: 2

When the distinguished 19th-century scientist Lord Kelvin wanted to address a particular matter, he first gathered together all the available information on the subject and then sat down and studied it. 

There is a wealth of knowledge and informed commentary on a whole spectrum of legal matters in the pages of the Journal, but if you do not keep back issues and have them bound every year, then to an extent that information is either forgotten about or not readily accessible. A few years ago, I was dealing with a matter and remembered that I had seen an article on the subject in the Journal a couple of years previously, but on making enquiries it turned out that the article had appeared about 11 years before, so memory is not always an accurate guide. I then decided to prepare a homemade cumulative index to all Journal articles which had any relevance to the type of work I do. 

At the present time, this index covers 49 years and extends to 64 pages, and if there is any relevant article or mention of the particular matter in hand, instead of having to look at 49 individual indexes I look at the cumulative index and hit the entry in about 15 seconds flat. A similar index exists for the Scottish Law Gazette commencing in 1984, and a digest for conveyancing cases subdivided into categories, such as execution of deeds, leases, standard securities, etc. 

Many solicitors would consider that they have far better ways of spending their time than laboriously preparing guides to such sources of information, but I take the view that few things are more wasteful of time and money than having to deal with a negligence claim, and the more information I can gain access to, the lesser is the possibility that I will make a mistake which might result in a claim on the Master Policy.

These indexes are “Aberdeen” type systems, where the cost is nothing at all but the value in certain circumstances is considerable. In my time in the law things have not become any simpler, and nowadays you need to be firing on all cylinders as regards available sources of information.    

Time to say goodbye 

Groucho Marx once said: “I’m not afraid of dying. I just don’t want to be there when it happens.” If you have a client who is behaving in a reckless manner and who refuses to accept what you know to be good advice, you may eventually have to contemplate resigning agency. 

A client was buying a new house in a small development and I spotted what could have been a ransom strip between the development and the public road. The developer knew that my client was very keen on the house so my negotiating position was compromised accordingly. There were other aspects of the transaction where there was a measure of slackness in the situation, but there was little prospect of me being able to do anything to make the client’s position safer. As the client was determined to go ahead with the purchase we simply resigned agency. The transaction had considerable potential to go horribly wrong, and if it did, another firm of solicitors would have the job of trying to sort out the mess.