Bankruptcy terminology, so familiar to lawyers, stymies clients. Even common English words seem to flumox our clients. We are a pair, divided by our common language.
Even without legal jargon, we talk past each other.
Words at war
How do we misunderstand each other? Let me count the ways:
- Property: I don’t have any property, lost the house to foreclosure last year.
- Property 2: I don’t own the house, the bank does
- Here are my debts: I’m current on everything else
- Value: well, no, I couldn’t sell it for that today
- Debts: not my debt, my (brother, child, parent) is the primary borrower
- Assets: you want bank accounts too?
- Legal rights: I didn’t include it because I haven’t filed the case
- Taxes: Nothing’s owed because I haven’t filed the return
- Ownership: not mine since I put title in my son’s name
- Full disclosure: sure I have clothes, they’re not worth anything
- Transfer that’s a bus token, isn’t it?
- Letter from court yes, it does have numbers down the left margin
- Inheritance: none: probate is still pending
- Real estate it really belongs to the bank
- Inheritance : yes, when my parent passes
If you’ve seen more than three clients, you’ve experienced the fact that, between the choice of our words and the client’s understanding (or misunderstanding) of the law, what appears to be the same question can produce wildly different answers.
My late friend and colleague Susanne Robicsek recounted the client who vehemently denied having a sofa or a davenport, but admitted to having a couch.
The fix
For this reason, a skilled practitioner comes at these essential questions with different words, in different contexts, in writing and in interview, to wring the necessary information from the debtor.
The consequences of not getting the information right range from embarassing to malpractice. So, it’s worth the effort.
Your turn. What words get mismatched answers from your clients?
More on the initial client interview
Why my consultations aren’t free
Giving a lien is a transfer, one that clients don’t intuitively see.
Absolutely agree. Of course, it’s also crucial for the attorney to understand the terms they’re attempting to explain. I’ve heard quite a few get hung up on that “transfer” thing. Yes, paying money is a transfer. (Then you get into the really interesting questions regarding “ordinary course” and “value”).
Ha ha ha ha ha. So true. Although my first and number one response is, “Why do they want all of this information?” Followed, of course, by, “How will they know if I don’t put X down?”
Before I even get into explaining the terms, I find myself having to give a little primer on lawyer ethics.
Great post. Thank you.
Most frequent: clients talk about “including x in their bankruptcy” as in: I don’t want to include that debt in my bankruptcy, or “why did my mortgage company get notice? I told you I don’t want to include the house in the bankruptcy!” or “I didn’t tell you about my tax debt because I know you can’t put taxes in a bankruptcy.” This variously means: listing debts or not, reaffirming debts or not, including debts as part of a Chapter 13 Plan versus paying them directly, or even disclosing assets. And they always expect me to know exactly what they mean with that phrase.