Civil Litigation Practice of Law

Don’t Take a Defendant’s Case Until Considering These Factors

Woman in white is thinking. Pros and cons concept.Plaintiff’s counsel always needs to consider whether the cost of litigation to the client is likely to outweigh the gain. Defense counsel needs to do a similar analysis: Consider whether the pros of taking a defendant’s case are outweighed by the cons.

Before you accept a case on behalf of a defendant, start by evaluating these six factors:

  1. Client’s staying power. Consider the prospective client’s prior litigation experience or sophistication in legal matters, and the client’s ability to commit to a lengthy litigation course, if necessary.
  2. Costs involved. You need to look at all of the monetary and other costs of litigation. Don’t forget to include the possibility of adverse publicity and costs that stem from that.
  3. You getting paid. Unless you’re taking the case pro bono, you need to determine the prospective client’s ability to pay your fees.
  4. Costs versus exposure. Consider whether the costs of defense are likely to surpass the dollar exposure (i.e., the largest judgment that could be awarded against the defendant at trial). If the costs are likely to outweigh exposure, quick settlement may be your client’s best bet. In any event, your prospective client needs to understand this analysis and you both need to be on board with whatever strategy you take.
  5. Insurance availability. Look at whether there are insurance policies that may provide for a defense paid by the carrier (and except in a conflict situation usually handled by carrier’s attorney) as well as coverage.
  6. Client’s communication skills. Having a communicative client makes a huge difference. Even from early contacts, you should be able to determine the relative ease or difficulty of communicating with the prospective client. This will be especially important when it comes to key decisions that must be made with a client’s input during the course of litigation.

If these factors don’t lead you firmly in one direction or the other, trust your gut. As Randall Ryder wrote on, “[y]our gut will tell when you should turn down what appears to be a great case, but there is something not right (but you can’t put your finger on it).” And sometimes your gut will tell you to represent a defendant despite the difficulties you see.

Get many more tips and practical advice before you take on a case in CEB’s California Civil Procedure Before Trial, chap 1.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2016. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

One reply on “Don’t Take a Defendant’s Case Until Considering These Factors”

If there are insurance coverage issues involved for your client determine if you can qualify as Cumis counsel and have your legal fees paid by the insurance carrier.

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