I recently had a case that was settled for much less than the client or I would have wanted. What started out, by all appearances, to be a strong plaintiff’s case unraveled as unexpected evidentiary issues plagued us. To say this outcome was a disappointment would be an understatement. I felt terrible that I was not able to do more for my client.
Yet I took some relief in knowing that I kept my client fully advised throughout my representation, that my client knew that this could be the outcome, and that I did everything I could do to advance my client’s case. I reminded myself that, despite my efforts, we simply cannot win them all.
Oftentimes our clients want us to tell them what the outcome of their case will be. They want to hear that they have got a slam-dunk case and that everything is going to go their way. They believe that, by virtue of retaining a lawyer, they are going to obtain the relief that they seek. They believe that, because they are on the “right side” of the case, justice will prevail.
Yet, lawyers don’t have crystal balls or magic wands. The fate of a case rests with a judge or jury and with what you can prove. Thus, the vast majority of cases settle because the client is able to maintain control of settlement negotiations and the ultimate outcome. Most clients are simply not willing to “roll the dice.”
We have all been before a judge or jury who we thought got it wrong, whether legally or factually. We have all had cases that looked to be an easy win that turn out to be anything but easy.
There is a mantra in the business world to under-promise and over-deliver. Yet, if we under-promise too much, we run the risk of losing the client to an attorney who expresses more optimism about the case. Conversely, if we over-promise, we run the risk of proceeding with a client who has an unrealistic view of the case. This may cause unintended consequences, like a client who will not accept a fair settlement offer and insists on going to trial, certain the million dollar verdict is a foregone conclusion.
So how do we realistically manage our clients’ expectations without losing business? How do we toe the line between being a counselor and being a business person?
I have found that being completely upfront with my clients is the best approach. I keep them informed of the progress of the case, particularly when challenges arise. I explain the strengths and weaknesses of our case from the outset and as the case progresses.
For example, I might tell a client that if I can find certain evidence, the case could be worth X, but if I can’t, the case is likely worth Y. The client then understands the range and the issues and nothing comes as a surprise down the line.
We cannot always tell our clients what they want to hear. We must sufficiently inform and advise clients so that they have all the information that they need to make decisions about moving forward. I value the case as best I can but always make sure the client understands that if the case goes to trial, there is no way of knowing what the judge or jury will do.
When discussing a settlement offer or demand, I often go back through that analysis — the valuation, the strengths and weaknesses, the costs associated with proceeding to trial, the risks associated with proceeding to trial, etc. The client ultimately will make the decision but the client is counting on me to enable him to make the best decision possible, with the most information available to him.
That recent case settled for the best number that I felt I could get my client. My client understood that a worse outcome was possible at trial, including possibly a defense verdict. Had I not had ongoing conversations with my client about the issues with this case, had I inflated the the issues or simply told the client what the client wanted to hear, I am certain that we would not have resolved this case and that, ultimately, this would be to the detriment of my client. While I am not pleased with the result, I do believe that I did my job in that case.