Do I Have a Case? Let’s Talk About It

“Do I have a case?” It seems like such a simple question. One that would seemingly lend itself immediately to an IRAC analysis (that’s Issue, Rule, Analysis, and Conclusion for those of you who have effectively blocked out your first year of law school). This question, maybe more than any other, is littered with legal booby traps for the unwary. But it also presents an opportunity for lawyers to have a full and frank conversation with prospective clients about not just legal merits but the legal process.

I get it. Just like I do with my Internist, potential legal clients want to jump right to the diagnosis. Is my hamstring torn? Do I have [name the disease]? And just as I get frustrated or impatient with my doctor wanting to run some blood work, to try physical therapy, or to just wait and see, it is easy to appreciate why those who are seeking legal advice regarding a potential employment matter can’t understand why there’s no quick (and cheap) answer.

But this simple question and the expectations that come with it are part of the reason I am unapologetic about charging a consultation fee. First, charging a little more than my hourly rate serves as a filter for those earnestly seeking legal help. Second, humans tend to value things based on how much we pay for them. (Think about how much better that meal seems or wine tastes based on the price on the menu.) Third, the answer to that question, while simple, likely derives from a distillation of hard-earned legal trial and error. (I often joke that I do not get easy questions.) Fourth, it lets people freely inquire about their legal dilemma without fear of receiving a surprise bill a month later. Fifth, and maybe most importantly, it gives me undisturbed time to discuss exhaustively the legal process, but all the peripheral dynamics that go with a trial and the marathon leading up to it.

Even non-litigators can appreciate that a simple question about the merits of a case does not necessarily imply a simple solution. Whether or not a fact pattern can lead to a potential recovery forecloses the multitude of considerations that should be taken into account in determining whether such an endeavor should be undertaken. (And this assumes a complete and accurate set of facts.) Here are some things I think potential litigators would be well-advised to consider.

Riding the Tide of Uncertainty

Maybe the most unsettling aspect of coursing through the legal process is the lack of certainty. Drafting a complaint can feel satisfying, vindicating, and relieving. Reading a response to that same complaint can feel deceiving, frustrating, or disrobing. And this is likely just the first few months.

Discovery can lead to even greater feelings of despair. Will it turn out our legal theories aren’t correct? Will the other side discover the ghosts in our own closets? How much is all this costing? Will this ever end? Each new request, response, and fact learned brings with it a new set of emotions. And that’s not to mention the anxiety brought on by a deposition. If I have learned anything as a litigator, it is the unknown (and the time to consider it) that creates the greatest amount of angst.

Our Dreaded Peers

While I think it is a convenient crutch for lawyers to rely on the adage that juries are unpredictable, I often advise clients that they should consider how well their narrative will play before not just a jury but the various other audiences at play in the legal process. In employment cases, which often involve early injunctive relief over competition or use of trade secrets, I admonish potential clients to consider how a judge will perceive their version of the facts in relation to another party and its lawyer looking to paint our side in the worst possible light.

But it’s also worth considering the perspective (and motivations) of the adverse party, their counsel, an insurance adjuster, a mediator, and ultimately a jury. It’s easy to see the facts from one’s own perspective, but taking the time to consider the view from different vantage points, as uncomfortable as that may be, can go a long way in determining not just whether but how to proceed.

The Real Costs

Because my fee arrangement seems to hover over every consultation, I generally address it head-on. This is one place where I am certain – it won’t be cheap. And while I am keenly aware of the pitfalls associated with providing a litigation budget, I rely on the fact that most people aren’t looking for an exact estimation cost, but a ballpark figure that they know is subject to considerable change.

Financial costs aren’t the only ones to be considered. In addition to the stress from uncertainty mentioned above, there’s time away from work, families, and friends. There’s the feeling that comes with worrying about a lawsuit during previously available downtime. There are the risks of distraction and of lost opportunities. And there’s a cost of pursuing a never-ending battle only to become disenchanted with the legal system and a feeling that “only the lawyers benefited from this dispute.” Each of these costs should be considered in earnest, despite the amount of principle at stake.

When It’s Time to Fight

A risk of laying things out so plainly with prospective clients is that no one in their right mind would choose such a course. (Certainly, defendants may not have a choice.) And it’s wise to avoid being perceived as afraid of the fight, or something less than a bulldog, but my experience leads me to believe that most clients, even the most war-ready, appreciate going through the process. I think it also allows client and lawyer to feel more confident if the decision is to proceed.

I’ve also learned that the relationship constructed during this relatively brief meeting will create a foundation for later, maybe more difficult conversations. As I like to say, if you have to be in a foxhole, it’s good to know the person you’re going to be stuck there with.

All of this is to say, rather than jumping to a conclusion on whether a prospective client has cognizable legal claims, lawyers should consider the value in having a protracted and earnest conversation of not just the legal merits of pursuing a claim, but everything that goes with it. In my experience, both client and lawyer will benefit.