Litigation is often the Focus in Law School
Many students graduate from law school without significant experience in the courtroom. And many of their classes have been taught using the Socratic method using appellate cases for discussions to understand the analysis and the logic employed by the justices to support their final opinions.
So, though out law school, they have engaged in animated discussions in class. Upon graduation, they feel the urge to demonstrate their legal prowess. And, in my experience, many of them tend to be geared toward litigation, rather than mediation, as they engage other lawyers in the resolution of a client’s legal matter. And many clients feel that litigation is most likely to produce the outcome they desire.
But Litigation is Risky
The reality is that anytime you litigate a matter and depend on a judge or jury to determine the outcome, it is a crap shoot! I say this because on any given day a judge can rule against you. You can make a record for an appeal later. But, if your client doesn’t have the means to pursue an appeal, it may not be the law, but it is the law to you!
Juries fill out questionnaires and you hope to pick jurors based upon that information coupled with your voir dire. But the truth is that there is far more information about their lives that you cannot access buried deep in their conscious or subconscious. This can affect the outcome of the case in ways that you never anticipated. And this increases the risk that the outcome may not be the one you or your client anticipated.
Set Realistic Expectations!
As you counsel your client, you must keep this in mind and not guarantee results. Although that would seem fairly obvious, what isn’t so obvious is that you may create false impressions in your client’s mind setting the stage for unrealistic expectations regarding their outcome. This is one of the major reasons, in my opinion, why lawyers have such a poor reputation among so many in the general population. It is easy to give the impression that a client’s cause of action has greater merit that is justified. As you are trying to impress your client with your abilities, they may put more weight on the possible outcome than they should.
Lesson Number 1, under promise and over deliver. This means that you set realistic expectations when counseling a client and caution them that there cannot be guarantees when there are variables – and in litigation, there are always variables.
Loose the “Deadwood” before it becomes a drain on your resources.
You may feel that if you don’t instill confidence, the client will go elsewhere. But you are better served losing a potential client who is controlling and demanding than to make their problem your problem. I have heard it said that, “20% of your clients will take 80% of your time”and “the ones who say it is about the “principle” are often the ones who won’t pay when the “principal” comes due”. Many of the solos I have interviewed tell me that it often takes years to finally learn to be discriminating and turn away potential clients who ultimately turn out to be the most demanding and most difficult when it comes to collections.
But, in reality, mediation offers many clients the best recourse to solve their problems – they just don’t understand this. See “Part 2” of this series coming tomorrow to understand why mediation may be the best path to satisfied clients.