Shortly after I became a law clerk, the senior partner had most new case calls routed directly to my office. We didn’t have a specific intake form at the time, but I quickly created one to help me remember to ask questions about liability, causation and damages.

As a newbie, it was easy to get sucked into the excitement of a “slam-dunk” liability case, and to forget to ask questions about the extent of the injury. I was taught that the perfect case is rare and that knowing which cases to take is an art.

I began to think of it as a sliding scale — good liability with lower damages might be worth it, harder liability with higher damages might be worth it, bad liability and lower damages is almost never worth it and (of course) good liability with higher damages is always worth it.

My boss at the time explained his approach to the business of law: every day and every phone call brings with it the promise of new client. This might be a worthy case, or an exciting new type of litigation. Along the way, I learned some of the rules for initial case intake and investigation. There are a few factors that must be included in the sliding scale determination.

Here are my rules:

1. Statute of Limitations: Don’t accept a case with less than 6 months until the statute of limitations expires, and certainly never accept a case that has already been filed.

2. Lawyer History: If your client has talked to multiple attorneys and been denied, be wary.  If your client has hired multiple attorneys and has been fired, or has fired them, do not accept that case.

3. It’s the Principle: Do not accept any client who wants to bring the case “on principle.”  Those clients will almost never be happy, because civil lawsuits cannot in practice make them whole or get them the apology that they want.

4. Unlikable Clients: If your client is mean or racist, working with them will take a toll on you.

5. Needy Clients:  If your client calls/e-mails/texts you  too often (particularly if you give them your cell phone number and they abuse it), you will spend too much time on the case for too little payment.

Now, every rule was made to be broken. I find that as a solo, I have violated Rule One (statute of limitations) on a number of occasions. I’m also violating Rule Two (lawyer history) from time to time. The key is to make sure that you know what you are getting into and know that you can handle it.

Rules Three, Four and Five are sacrosanct, however. In the case of needy clients, I set the ground rules for communication early and stick to them.

I had a meeting with a new potential client recently after he called me looking for help. We arranged a meeting and he told me that his case was set for trial in the circuit court early next year, and that he just fired his attorneys. Those lawyers managed to get him a settlement offer in the low five figures, though from his perspective they did not make any serious efforts at negotiating and they were pressuring him to take the offer (despite never telling him what he would get after payment of all medical bills, legal fees and case expenses). He wanted someone to come in and take over.

I took a look at the medical records and told him that the offer was likely too low and that I’d be happy to take it on for trial. As the conversation developed, though, it became clear that he did not want to go to trial — he simply wanted another attorney to take on the case and to negotiate the settlement higher.

This client was very risk averse. Even a low offer (less than the total medical bills) was more palatable than the possibility of a higher verdict accompanied by the risk of a lower verdict. It became clear that, no matter what, he would have accepted any offer rather than go to trial.

The case already had two strikes against it — it was in litigation and the gentleman had not only one prior attorney, but two prior attorneys who were each claiming liens on the case.  From a business perspective, there wasn’t much to be gained by taking over the case — the settlement offer wasn’t likely to increase much, and there was no chance of a good verdict. A client who had already fired two lawyers was likely to have unreasonable expectations, and it is much more difficult to ethically get out of a case after a lawsuit is filed.

While true that I could have engineered a creative retainer agreement, the risks seemed too high and I took a pass. In the end, I’m sure I’ll sleep better, and I’ll wait for that next phone call.

How about you? Do you have any other rules about prospective cases?

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