The Gentle Reminder to Pay Up
When to remind clients about their non-payment, and why such reminders are so important.
Like so many other lawyers, much of my career is devoted to nagging people to do what they are supposed to do—and in fact, what they’ve already agreed to do. That is essentially what is happening in litigation seeking to enforce contracts, as well as pursuing insurance claims or even in probating estates. If the foot-dragging party did what they were legally obligated to do, most likely you wouldn’t have been hired in the first place. Consider the elaborate systems that our society has set up to deal with stragglers in the business world – that is, in reality, what the litigation system is—and you will observe a well-thought out framework of registering one’s demand (filing a complaint), telling the other party about your claim (serving the complaint), and pursuing the claim all the way to a trial and judgment.
On some fundamental level, getting paid as a lawyer isn’t all that different. You need to voice your dissatisfaction regarding the lack of prompt payment, and then you need to persuade your client to do what they have clearly agreed to do, i.e. pay your bill. And just as you can’t go directly to trial in a contract matter without following all the requisite legal procedures, there are some beginning steps in a payment pursuit that should be followed. Unlike the Code of Civil Procedure the rules are not so clearly marked out, but the general concept is the same. Start with a request, elevate it to a demand, and then proceed towards enforcement from there.
Proper handling of the first round of demands is of paramount importance, as that is when most of your non-payment problems are going to be solved—that is, as long as you don’t blow it by mishandling the approach. The key to success at this early stage is to keep the following lessons in mind:
- Don’t be shy about describing the non-payment situation in accurate detail. Be specific about how much is owed and how long it’s gone unpaid. Of course your client knows this information, but stating it directly—either in an email or on the phone—is a way of bringing the reality of the situation into the discussion. It is also a way of insuring that your client can’t pretend to not know (or have forgotten) the details of the problem.
- Try to gain an understanding of why the bill hasn’t been paid. Remember, you are trying to discern the real reason, not some lame face-saving excuse. Clients are very savvy when it comes to knowing what isn’t going to be well received, so they may tend to conceal the real reason if they think it will create animosity. I always make it clear that I’m not charging for this conversation or email, and I always signal that I’m open to hearing whatever bad news they want to deliver to me.
- Make it clear that if the problem isn’t resolved in a timely manner there will be consequences. It’s not essential that you set a specific deadline or declare what the consequences will be in this first nudge, but clients need to understand that this is the “gentle” reminder – and the next one won’t be so gentle. I use phrases like “I am not sure how long I can continue to work without this situation being resolved” or “I’m sure you can understand that we need to address this issue before it puts our working relationship in jeopardy.”
- Be certain to establish that while you are upset about the non-payment situation, your professionalism will keep you on track in your performance as their lawyer while the fees issue is being resolved. To that end, I usually combine a nag about the bill (whether by email, phone or in person) with some mention of something arising in their case, if the matter is still ongoing. I want to reinforce that while I do indeed care about getting paid, it’s not the only item on my task list.
- Make a specific “ask” as part of your request. Sometimes it is simply to ask for a partial or full payment. But in other situations you may need to do some preparatory work, such as asking them to put their concerns about the bill in writing. In other settings you may need to ask to speak with a senior person in their organization, if there are problems up the chain of command. It doesn’t really matter all that much what the request is—the key point is that you are asking them to pay attention to this problem and demonstrate a willingness to respond to your requests.
- Give some thought as to what is the best mode of communication. A phone call is usually better than an email, as it conveys the personal concerns and enables you to have a more free-flowing conversation. An email is easily disregarded and can also be misinterpreted. Understandably, in some situations email is the only way to get the message across, but consider following it up with a phone call. Even if you end up leaving a voicemail you are still making a personal “touch” with your voice. And lastly, a handwritten note enclosed with an invoice is always appropriate, and usually invites a reciprocal personal response.
Frederick Hertz, an attorney and mediator based in Oakland, has managed his practice for more than 25 years.
"The Art of Getting Paid" is a one-year series of blog posts that provides a comprehensive training to lawyers on how to get paid.
We welcome your questions and comments – and of course, your suggestions on how to master this insufficiently respected aspect of practicing law.