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She sat across from me with a printout of her ex-partner's latest offer and one question that told me everything: "If I win, he pays for all of this, right?" I have heard some version of that sentence more times than I can count. And every time, the honest answer costs me something, because the honest answer is not the one the client wants to hear.
Let me tell you about a client I will call Maya. She is a composite, stitched together from a dozen real files, but the misunderstanding at the centre of her story is real. Maya believed that a family court judge, once persuaded of her rightness, would make the other side write a cheque for every dollar she had spent. She had built her whole strategy on that belief, and nobody had corrected it.
The Client Who Thought Winning Was Free
Maya's first lawyer had done competent work. What that lawyer had not done was slow down, early, and separate two ideas that live in every client's head as one: the fees Maya owed her own counsel, and the costs a court might order the other party to pay. To Maya these were the same thing. Win the argument, get reimbursed, walk away even.
That is not how it works, and the gap between the belief and the reality is where trust goes to die. When a client discovers late that "winning" left them tens of thousands of dollars out of pocket, they do not blame the law. They blame the lawyer who let the misconception stand. I have taken on those clients. They arrive suspicious, and rightly so.
Warn. A client who does not understand costs will read every fee they owe you as a broken promise. The promise was never made out loud, but silence let them assume it.
Separating Your Fees From Cost Awards
Here is the distinction I now draw on a whiteboard in the first meeting, because words alone slide off. Your fees are the money the client pays you, under the retainer, for the work you do. They are owed regardless of outcome. A cost award is something a court may order one party to pay another, usually the losing side toward the winning side, and it almost never covers the full bill. The scale, the factors, and the tariffs vary by court and change over time, so I never quote a client a number as if it were a guarantee. What I do promise is clarity about the mechanism.
| What the client hears | What is actually true |
|---|---|
| "If I win, he pays my legal bill." | A cost award may cover part of your fees, rarely all of them. |
| "Costs are automatic when you win." | Costs are discretionary and shaped by conduct, offers, and outcome. |
| "I owe nothing if the judge agrees with me." | You owe your own counsel under the retainer, win or lose. |
| "There is no downside to pushing to trial." | If you lose, you may owe the other side's costs on top of your own. |
That last line changes behaviour. Costs exposure runs both ways. A client who insists on a hearing they are likely to lose risks their own fees and an order to pay the other side. Most people have never once been told that out loud.
The Conversation Nobody Wants to Have Early
I understand why we avoid it. Early in a file the client is raw, often frightened, and money talk feels cold on top of grief. There is a temptation to say "let's focus on the merits and worry about costs later." Later is exactly when it detonates.
So I front-load it. In the first substantive meeting, after I understand the shape of the dispute, I walk through a plain-language costs picture: what you will pay me, roughly and in stages; what a favourable cost award might and might not recover; and what an adverse award could look like if we lose. I tie it to the file's real chronology so it is not abstract, and a clean file chronology that works makes that conversation far easier to have honestly.
Tip. Put the costs conversation on the same footing as the merits conversation. If you would explain the law of the case in the first meeting, explain the economics of it too, in the same breath.
I document it. A short follow-up note confirming what we discussed protects everyone, and it gives the client something to reread when the fear fades. Keeping that record close to the matter, rather than buried in an inbox, is one reason I moved my billing and trust workflow into a single system; in A1 CMS the estimate, the notes, and the running time sit on the same file.
When Costs Shift the Whole Strategy
Back to Maya. Once she understood that costs were discretionary, partial, and two-directional, her strategy changed within a single meeting. The offer on her desk, which she had dismissed as an insult, suddenly looked different. Not because it improved, but because her understanding of the alternative did.
A client who understands how costs work makes better decisions throughout the file. One honest conversation early is far cheaper than the damage control that follows a surprise at the end. Devon Reyes
Costs awareness reshapes the offer analysis in a way nothing else does. A written offer to settle can carry cost consequences if it is beaten at a hearing, which means the settlement conversation and the costs conversation are really one conversation. When I help a client with framing settlement offers, the costs mechanics are baked in from the first draft. Maya started asking the right question. Not "will I win," but "what does winning actually net me, and what does losing actually cost me."
That is a client thinking like a litigator, and it is a far safer client to represent. The same reframing feeds every downstream decision, from whether to attend a case conference in a settlement posture to how hard to push on a contested motion.
How the Story Ended Differently
Maya settled. Not because she got everything, but because she made a clear-eyed choice with the full economic picture in front of her. She kept more of her money, and she trusted the advice because it had never once been dressed up. When the final invoice came, there was no ambush in it. She had seen the shape of it coming for months.
Contrast that with the version of Maya who went to trial believing costs would make her whole, lost on a discretionary point, and got hit with an adverse award she never knew was possible. That client does not just lose money. She loses faith. The costs conversation is a client experience tool as much as a financial one.
If you take one thing from Maya's story, let it be this: the conversation you dread is the one that earns you the client's trust for the life of the file. Have it early, have it plainly, tie it to real numbers, and write it down. You will spend an uncomfortable hour up front to avoid a ruinous one at the end, and your client will remember that you told them the truth before they had to learn it from a bill. My other writing on the family and civil files keeps circling back to the same lesson, because clients keep teaching it to us.
