RECOGNIZING THE DOGS BEFORE THEY ARE BARKING FROM YOUR FILE CABINET

By: Claude A Wyle
Choulos, Choulos & Wyle
1701 Franklin Street
San Francisco, CA 94109
Tel: 415-474-7800
cwyle@msn.com

INTRODUCTION

We have all heard the age-old saying “you can’t make a fine silk purse out of a sow’s ear”. Likewise, you cannot become a great trial lawyer trying truly bad cases. Therefore, an analysis of the results obtained by successful trial lawyers will demonstrate a reverence for good facts and good law. One simply cannot become a fine advocate of bad facts and bad law. One of the true advantages of being a Plaintiff’s lawyer is that we are not bound to represent each and every potential client who contacts us. We have a choice of which clients and which cases we wish to accept. Not all cases need to be brought.

We, as advocates, have an obligation to define the character and personality of our practice. We must carefully decide our areas of practice, develop skills and information bases for those areas, and then stay the course. The day of being able to be an expert in everything is probably gone, especially if a lawyer desires to participate in extremely complex, protracted, expensive litigation, founded upon technical or engineering theorems. Medical malpractice and products liability cases are the best example of this latter reference.

Speaking from experience, case selection, or de-selection is a critical decision for every lawyer, and we do not always make this decision wisely. Accepting the “wrong” case can be emotionally, financially and professionally costly. If a lawyer has enough of the wrong type of cases, even handled on a shoe string, he might tie just enough shoe strings together to hang himself.

Several considerations are necessary in order to make a prudent decision in determining what is an acceptable case. Before any case is accepted, care should be given to analyze the minimal following considerations. My first two, and most often repeated questions are: 1.) Can I make the client happy? 2.) Can I make myself happy?

I. Evaluating Clients

In order to avoid the wrong cases that will either make the client unhappy or the lawyer unhappy, a face to face interview by you with the client is absolutely essential. At the face to face interview, the following guidelines should help you to decide regarding case selection/deselection:

1. Consider the jury appeal of the client.
2. Is the client likeable?
3. Will the client be able to communicate his or her story?
4. Is the client a chronic complainer or exaggerator?

You must also review all pertinent records from the client at the initial interview or obtain these records as soon as possible based on information obtained in the interview. Next, before a final decision is made to accept or reject the case;

1. Make sure the records are consistent with the client’s story.
2. Look for pre-existing or causal factors about the injury that the client did not tell you about.
3. Look for smoking guns, such as comments that your client might have made to the police or to witnesses, or facts that your client neglected to mention in the interview, or other case-killing information.

There exist several red flags which should warn you to stay away from the client.

1. Is this client litigious?
2. Does this client exaggerate injuries and damages?
3. Could this client be painted as a liar or untruthful in any way?
4. Is this client lawyer shopping?
5. Does this client have a complicated medical history including pre-existing or prior injuries?
6. Does this client appear to be a malingerer?
7. Is this client not entirely forthcoming or honest with you?
8. Does this client express a willingness to lie to obtain money on their case?
9. Does this client have unrealistic expectations in regard to the value of their case?
10. Does the client argue with your advice or instructions, and think she or he knows better?
11. Does the client want too much control of your case or the costs you are going to invest?
12. Has the client been cooperative with their health care provider?
13. Is the client being treated primarily by alternative medical providers?
14. Does the client expect you to drop everything you are doing at a moment’s notice for their case? Is the statute of limitations next week?
15. Is the client a conspiracy theorist?
16. Does the client appear vengeful and/or impractical?
17. Does the client ask for advances of money, child care, etc.?
18. Is the client stinky?
19. CAN YOU MAKE THIS CLIENT HAPPY?
20. DOES THIS CLIENT FALL INTO THE CATEGORY OF “LIFE IS JUST TOO SHORT”?

II. Evaluation of Liability

1. Obtain liability records such as police reports, medical records and
   so on.
2. Look up the law to refresh yourself, particularly with an eye toward immunities or defenses. Jury instructions are a great place to start.
3. Visit the scene where the incident took place.
4. Preserve the necessary evidence.
5. Interview the witnesses before they disappear.
6. Use all of the shoe string resources available to you through the various trial lawyer organizations.
7. Run the case by a mentor or specialist.

III. Damages

Of course,the primary questions of “Can I make this client happy?,” and “Can I make myself happy?,” cannot be answered unless you can ballpark potential damages, the potential fee, and the potential net recovery to the client.

1. Injuries.
2. Liens on recovery.
3. Insurance Coverage.
4. Deep pocket or ability to collect judgment.
5. Jurisdiction.
6. Caps on damages.

IV. Analysis of Anticipated Defenses

1. Comparative negligence
2. Degree of culpability of Defendant
3. Immunities, legal defenses, and legislative bars to your client’s claim.

V. Economic and Resource Consideration

Serious thought must be given to the resources that you will need to commit to each and every case. You may be able to invest thousands of dollars, and hundreds of hours into a certain case and win that case. Will the fee earned after this large investment of money and time make you happy? Winning at all costs generally costs you the happiness of the client in terms of their net recovery.

1. Evaluate possible costs up front and make sure you have the necessary money available to commit to this case.
2. Consider how long it will take you to recover your costs invested and ask if you can or wish to wait to be paid.
3. Will your return on the case justify the costs invested?
4. Will you have to absorb the costs yourself because of liens, subrogation or other competitors for the recovery of your client.
5. Is the recovery collectible?
6. Do you have the time to invest in this case to make it successful?
7. If this case is too expensive for you. Should you refer the case out or associate with another firm?
8. Make sure you have the time based on your current case load, family obligations, and enjoyment of life to handle this case.

VI. Ethical Considerations

1. Conflicts of interest.
2. Competence – Experience and ability to handle the subject matter.
3. Knowledge of local rules and/or law in each jurisdiction in which you wish to prosecute a case.

VII. Other Considerations

I do not mean, by any of my comments, to discourage anyone from taking pro-bono work, or from weighing other considerations such as the relationship with the client to the office, preserving a referral source, or the public relations value of the case. You may feel compelled to undertake a claim just because the cause is righteous. Still, you must be very cautious with these types of considerations. Remember, the practice of law is costly. Unless you are careful, you may be drawn into a case where the expense and demands on your time will be enormous but the likelihood of collection, even in the event of a successful verdict, is extremely low. If you cannot answer the two questions; “Will I make this client happy?,” and “Will I make myself happy?,” in the affirmative, reject the case. Otherwise, after a period of time you will become weary. When you become weary, frustrated, and lose interest, malpractice is a very short distance away.

Case evaluation is a process that begins when you receive the very first information about the case and finally ends when the case is over. It is a continuous and evolving process, but the first step is always the most important. Is this client someone whom you trust and someone whom you think will follow your advice?

VIII. Acceptance or Rejection Once You Have Decided

If you decide to undertake the case, discuss and review, in person with the client, all written documentation concerning your fee agreement. If you accept or reject the case, do so in writing. You should know how to decline a case without committing malpractice. You should know the requisite elements of a rejection letter. Clearly state the fact that the representation has been declined. Always mention the applicable Statute of Limitations concerning the client’s case. Express no opinion on the merits of the case or matter being declined. Urge the client to consult another attorney immediately.

If you decide to work with other counsel, either through referring the client to that counsel, or associating that counsel in on your case, remember that ethical requirements dictate that a division of the fee is supposed to be in proportion to the services performed by each lawyer, or by written agreement with the client, and that each lawyer involved assumes joint responsibility for representation. The tort of wrongful referral is alive and well. The client must be advised of and must not object to the participation of all lawyers involved, and the total fee must ultimately be reasonable.

VIII. Conclusion

If you cannot make the client happy, they may speak badly of your office to other potential clients in the future. If you cannot make the client happy, you cannot make yourself happy. Even if you feel you must reject a potential client, if you do so pleasantly, and with sensitivity, you may still be making this person happy. If you can make the client happy without sacrificing your happiness, you will have made a new friend and another referral source. If you recognize the dogs before they start barking from your file cabinet, you can practice on a shoestring, confident that your all too precious resources are being well invested.