The ability and willingness to undertake (and share with the client) a cost-benefit analyis throughout the litigation.
Things change in litigation. For example, as mentioned in a least one previous post in this series, almost every deposition changes the value of a case. But there are many other things that impact the value of a case as well.
A personal injury client who forgets or lies about past medical or litigation history can cause severe damage to his case. A corporate defendant in a wrongful death case changes the landscape of the litigation if it is caught hiding or destroying documents. The commercial litigant may have its case hampered by a disgruntled former employee. And so on.
Great trial lawyers know that despite their best efforts there will be events that occur that hurt their client’s position. And they do their best – within the bounds of law and ethics – to cause or contribute to cause events that will adversely impact the case of their opponent.
Thus, great trial lawyers know that it is in the client’s best interest to evaluate the case at various points in the litigation process. Events may occur that provoke a higher settlement proposal – or the withdrawal of an outstanding offer. A mediation may need to be scheduled – or postponed. More discovery may be necessary – or planned discovery canceled. Great trial lawyers do not practice law on autopilot.
Great trial lawyers also take into account the costs of litigation in evaluating cases – both at the time of employment and throughout the litigation. Litigation is expensive. Clients need to have an idea about the costs of litigation to make informed decisions about settlement and trial. Great trial lawyers do not fear giving clients accurate information about litigation costs, and do not fear identifying the variables that will affect costs. They do not deliberately understate potential costs to secure representation.
Great trial lawyers frequently represent clients who take positions in litigation as a matter of principle. Clients have a right to draw a line in the sand and pay to litigate when, from an accounting standpoint, it makes no sense to do so. These lawyers understand that the client may have other interests at issue (e.g. the need to send a message to future litigants that settlements will not be readily forthcoming, the need to protect proprietary information, etc.) that would cause them to spend more money prosecuting / defending the case than it would cost to resolve it.
That being said, great trial lawyers help such clients understand the costs attendant to acting on "principle." Thus, these lawyers carefully help the client analyze the "principle" at issue and help examine the factors that will assist the client in evaluating the how much the client is willing to spend to protect the "principle."
None of this should be read as suggesting that great lawyers encourage a client to abandon positions based on "principle." Far be it. Rather, these lawyers know that a client’s early declaration of "I don’t care how much it costs, this is a matter of principle" often changes after the legal bills begin to flow into the accounting office. They also know that, despite frequent initial resistance from the client, these discussions actually solidify the relationship between lawyer and client, because the client understands (or comes to understand) that the lawyer is attempting look out for the client’s long-term interest.
Great trial lawyers do not initiate such discussions for the first time late in the litigation process. It is all-too-common for lawyers to silently yield to the client’s "litigate at all costs" mindset at the beginning of the litigation and then begrudgingly began to inject some level of reality into the discussions only after the legal bills have piled up. Such lawyers are working from a position of fear, greed, lack of experience, or a combination thereof.
Finally, great trial lawyers also help a client understand the non-financial costs of litigation. Plaintiffs in wrongful death litigation need to know that the healing process will not truly begin until the litigation is over. Corporate and business clients need to understand that litigation will consume some amount of the productivity of the company and may impact the company’s reputation. Acknowledgment of these facts does not mean that a claim should not be pursued or defended. Rather, great trial lawyers know that clients need to understand these matters so that they can make an informed decision about whether to engage in and continue with litigation.
The rest of the series.