TO-WIT: PRIMER
Quite honestly, it surprised me. I thought I had the client’s complete confidence. Yet there I was sitting in the hall outside the courtroom and expecting my client to be pleased by the extremely attractive settlement proposal just offered by the other side. And there she was, stone-faced and unresponsive, as if complete aphasia had struck her on the spot.
Feeling my control over the client ebbing away, I fell back upon my best professional demeanor. “Take the damn offer,” I said. “It’s more than the case is worth.”
“I don’t know,” she replied. “Can I make a phone call first?”
I hear all you litigators out there groan collectively. Yes, she wanted to make a phone call, and given the circumstances, that can only mean one thing – she felt the need to solicit someone else’s opinion on the matter. Obviously she didn’t fully trust her lawyer, and that meant me, the very me for whom the certainty of an otherwise contingent fee rested solely on her decision.
Despite my many years at the bar, I have never quite learned how to respond to this situation. If I politely inquire “why do you need to make a call,” the client thinks I’m trying to prevent her from getting the opinion of someone she trusts. If I say “Of course you can,” I run the risk that the settlement decision may be inappropriately influenced by someone who knows even less about the case than I do. And if I say what I want to say, “What the hell’s the matter with you,” I breach one of the most inviolate rules of the profession – never treat a client like a spouse.
I understand that clients sometimes don’t fully trust their lawyers. After all, they are in need of us frequently because someone else has already been to them unkind, unfaithful, uncaring or drunk. As an attendant result, they come to us with a trust level that is not at an all-time high. And when they find themselves thrust into a judicial system that is totally arcane to the unfamiliar, whatever confidence may remain is even further eroded.
It is completely understandable why client needs to turn to someone they trust, but this presents problems. Anyone else whose opinion a client may seek is almost never in a better position to render advice, and I just bristle at the notion that a relative outsider might proffer counsel that could screw up a good result. Hey, I’m the lawyer here, and that’s my job.
No doubt much of this dilemma could be avoided if a client could be sufficiently well informed about the law and its perils so as to participate intelligently in the decision making process. For instance, if my client in this particular case had some familiarity with the concept of comparative negligence, she might better have appreciated why I was concerned that, although this automobile accident had occurred when her car had been struck from the rear, she had at the time been backing up.
Operating from the theoretically unassailable hypothesis that a more informed client is a better client, I’ve prepared a few helpful pointers aimed at assisting the client to better comprehend the ins and outs of litigation. It is my fondest hope that this modest little effort of mine will both educate the client and promote his or her more informed participation in the decision making process. You will note that I utilize the Socratic method of pedagogy. That is to say, if your client gets it wrong, get out the hemlock. I suggest that you let your client read this, or read it to him, as the case may be, on an “as needed” basis. I will leave the timing to your best professional judgment, but I think it wise to do so prior to the first time your client testifies under oath.
Daylight fall downs are inherently difficult cases to win. You fell at night, didn’t you?
In a marital case, any offer of settlement that doesn’t draw blood should be accepted.
Although “I’m not entirely certain, but” is a good way to preface your testimony if you are not sure of the answer, this does not apply when you are being sworn in.
You are always free to seek the opinion of a second lawyer unless your first lawyer says no.
When it comes to deciding whether or not to settle a case, remember that your lawyer has to eat too.
With a little imagination, it is possible to be a guest passenger in a one car crash.
Your Rotweiler has never bitten anyone before.
Permitting the police to draw your blood is against your religion.
As a life-long rooter for the local baseball team, you had no idea that baseballs were ever hit into the stands.
Had you known that the removal of your appendix involved cutting, you never would have consented.
Well, that should do it for starters. Any client who can comprehend these teachings is a client you can rely on, with your guidance of course, to make the right decisions. Hereafter, when a client says to you “Can I make a call,” you can rest assured that it will be to contact either a stock broker or a bookie, and isn’t that a nice reflection on you?
© 1996, S. Sponte, Esq.