When a prospective client brings you a case, they’ll want to know immediately what you think. It’s rarely possible or wise to give a firm, unqualified opinion as to the likelihood of success, or even to recommend a particular course of action at the first meeting. But you can and should outline possible results, risks, costs, timing, and alternatives.
Based on the information the prospective client has provided, provide an initial assessment of the matter and the available alternatives. Here are 5 things to cover in this initial assessment:
___ 1. What you see as the significant legal or factual issues in the case and which way the issues (or some of them) might be resolved, assuming the facts as stated.
___ 2. If litigation is undertaken, what you envision in terms of:
- Any steps that should be taken immediately (e.g., to prevent the running of a statutory deadline or to preserve evidence);
- Legal research and factual investigation;
- Possible pleadings (including cross-complaints), motions, and discovery the parties are likely to undertake;
- The litigation’s likely duration and expense; and
- The range of recovery or exposure for the client (if reasonably based on the information provided in the first interview and known to you).
___ 3. Whether the claim or defense could be considered unmeritorious and could present ethical or other problems if vigorous litigation is undertaken. Explain the risk of a malicious prosecution claim.
___ 4. The possibility of early settlement and the feasibility of a minimal cost approach to the litigation. Depending on the client’s legal sophistication, you might explain that:
- The vast majority of lawsuits don’t go to trial;
- The expenses of a lawsuit, if taken all the way to trial (or appeal), weighed against the potential outcome, may be prohibitive;
- Some cases settle quickly when concessions are made and a conciliatory stance is taken at the appropriate time; and
- The other parties may nonetheless undermine settlement efforts, escalate discovery, and force the case to trial.
___ 5. The possibility of doing nothing or seeking to resolve the matter short of litigation if:
- Liability is weak or too expensive to prove, or the chance of recovering damages from the prospective defendant is slim; or
- Seeking a legal solution could escalate an already difficult situation, causing disclosure of confidential personal or business information, unflattering or intrusive publicity, or the setting of an adverse precedent arising from the case.
It may be a good idea to caution the client that litigation should be viewed as a last resort or the least desirable option, often taxing family or business resources emotionally and financially. Risks to be weighed include the possibility of having to pay the costs and fees of the adverse party if the suit is unsuccessful, or having to defend against a cross-complaint.
Most clients will appreciate, and some will expect, your written assessment of the issues and concerns outlined in this checklist within a reasonable time after you’re retained. Sophisticated clients may ask for an initial written analysis, plan, and proposal from you. Make sure that any written assessment includes a recitation of the pertinent facts known and assumed by you to be true.
For more on what to ask and tell during an initial interview with a prospective client, turn to CEB’s California Civil Procedure Before Trial, chapter 1.
Other CEBblog™ posts you may find useful:
- Tricky Business: Representing Clients with Adverse Interests
- When Settlement Pits Client Against Attorney
- Something to Chew on Before Biting into a Settlement
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