A few good cases are better than a cabinet full of problems
Book Excerpt from
Personal Injury Handbook
By Lawrence R. Booth
& Roger Booth
James Publishing, 2011
We have all had them. He calls all the time. He may even show up in the office without an appointment. He thinks he is the only client you have. His obsession in life is getting even for the wrong visited upon him. He claims to want only justice and not to care about the amount of money he might recover. Nonetheless, when a settlement offer is on the table he rejects it out of hand. He refuses to listen to advice. He is oblivious to the risks and hazards of trial. He is the client from hell. It is best to avoid him in the first place, but if not, to encourage him to go elsewhere, the sooner the better.
Signing up the new case
Be selective. The hardest thing for any lawyer to do, especially a young lawyer, is reject a case that appears as though it might bring good money into the firm. Caught up in the hustle and bustle of practice, lawyers often are so happy to land what appears to be a good case that they do not take sufficient time to understand the facts, get to know the client, and, most importantly, fully explore the reasons to reject the case. Accepting a bad case causes several problems.
The case ties up the attorneys’ money, gives them headaches, and eventually produces little, if any, income. It also ties up the attorneys’ time preventing them from concentrating on other business.
A few good cases are better than a cabinet full of problems
Sometimes, attorneys take a bad case because they have the deluded belief that somehow they can help everyone. There are certain people you cannot help or who have problems that cannot be economically solved. An attorney we have known for years works seven days a week, makes little money and looks 20 years older than he should. His office looks like a hurricane just hit the building with the windows open. He takes every case that somehow finds its way into his office, works like mad and produces little results. The clients do not appreciate all the effort because the final settlement, if any, is disappointing in the extreme.
On the other side of the spectrum is a famous attorney we know who brags that his case load at any given time is no more than eight or 10 cases, and this is with a staff of several attorneys and a lot of clerical help. Nonetheless, his results are spectacular and he consistently makes a huge income. There is a happy medium somewhere in between.
Checklists: Cases to avoid
When a client calls who has been rejected by another attorney, watch out! Don’t take some other lawyer’s rejects.
• Is the client overly anxious, excited and wanting to sue everyone?
• Is the rejecting lawyer well respected in the community?
• The rejection occurred after a long period of litigation?
• Is it late in the game in terms of discovery, trial dates, deadlines, etc.?
• Has the client rejected a settlement offer that seems in the ballpark, especially in an automobile-accident case where there may be small policy limits?
• Does the client have a history of numerous lawsuits and claims?
• Does he “smell” like trouble? (The smell test.)
If any of these indications of a potential bad client apply, you probably should reject the case. If they all apply, run as quickly as you can from ever representing this client. Nonetheless, a certain amount of discretion must be exercised depending on the strength of liability and especially the seriousness of the injuries.
Sometimes we have taken over cases late in the game if we feel the current lawyer is just over his head, and the same thing applies to low offers. We once had a settlement judge recommend our firm (along with two others) to a lawyer who was just not experienced enough to realize the offer was way too low, was anxious about actually going to trial and had a client who rejected the offer.
Checklist: Cases to accept
• Big injuries can usually make up for tough liability. In the hands of a good lawyer with a good trial record, these cases settle all the time.
• Most good clients, especially the ones with serious injuries, almost never ask what the case is worth.
• The case may fit into a particular area in which the lawyer is comfortable from prior cases.
• After some investigation, you may decide that your immediate reaction to the client was not warranted.
Withdraw early if the case goes sour
Just as important is not taking questionable cases or cases rejected by other lawyers is the maxim to “get off the horse early.” If a case appears to be going sour either in the preliminary investigation phase or during discovery, the best course of action is to bow out. Most contingency-fee contracts allow the attorney to withdraw at his own discretion. The key is to do it early. It is possible malpractice to do it late in the game with a trial looming.
Some years ago, we helped defend a referring attorney of ours against an old claim for which his legal malpractice coverage was inadequate. The plaintiff was a minor and therefore the applicable statute of limitations allowed for a fairly ancient claim. However, the malpractice coverage was based on the economy then, not now. The underlying case was not winnable for a variety of reasons and our attorney friend should have rejected it out of hand.
During jury selection, the prospective jurors had great difficulty dealing with the concept that the attorney defendant accepted a terrible case. There is, or course, no liability for somehow mishandling a bad case because the plaintiff is not damaged. Frankly, the jury thought our efforts to demonstrate that the underlying case had no merit was just making an excuse for the defendant attorney. The lay public, including clients, does not understand that a lawsuit is like a baseball game: it may change radically at any time, even in the bottom of the ninth inning.
Larry Booth is the author, along with his son Roger Booth, of the 600-page Personal Injury Handbook (http://www.JamesPublishing.com) and has tried hundreds of jury trials. The firm he founded, Booth and Koskoff, has achieved over 80 jury verdicts and settlements in excess of seven figures. In 1974, he was selected to the Inner Circle of Advocates, whose membership is limited to the top 100 Trial Lawyers in the United States.
2016 by the author.
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