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‘Do I have a winning case?’

Jeremy Rachlin

Jeremy Rachlin

Few things frustrate potential clients more than when it feels like their attorney (or their prospective attorney) refuses to give a direct answer to what they perceive to be a reasonable question. Few things frustrate attorneys more than when we cannot give a direct answer to what we know the potential client believes to be a reasonable question.

Case in point – the question that comes up perhaps more frequently than any other in nearly every initial consultation: “Do I have a winning case?”

From the potential client’s perspective, it is perhaps the most important question, aside from cost. At the outset, the potential client is weighing the monetary and non-monetary costs of investing in litigation to right a perceived wrong. Of course, understanding if they have a “winning case” is a critical factor to the potential client in performing this analysis.

From the attorney’s perspective, it is the ultimate trap question. If you answer wholeheartedly that, yes, the potential client has a slam dunk case no competent attorney could possibly lose, bar counsel may have something to say about that (See Maryland Rule 19-
307.1(b).) On the other hand, we fear that if we offer a prognosis that the potential client feels is too wishy-washy or pessimistic, the odds of that potential client retaining our services just vanished.

So where is the middle ground?

First, I like to talk to potential clients about how every case has good facts and bad facts. And I tell the potential client (assuming this to be true) that they’ve just relayed a number of “good facts” that, assuming were borne out as true after we go through the wringer of discovery and cross examination, would be very helpful to establishing a winning case. But I remind the potential client that at this preliminary stage, we have no way of understanding the universe of “bad facts” that may be out there – or at least the good facts that the other side feels are on their side to support their version of events or interpretation of the law. I also talk to the client about how easy it can be to be blinded by the “bad facts” that may be hiding out there.

Second, I do my best to empathize with these potential clients. I acknowledge the elephant in the room. I affirmatively recognize that my response may be perceived as squirrelly or representative of typical attorney conduct trying to dodge a question. I explain to the client that I
understand how important it is to have assurance they have a “winning case” as they decide whether to move forward with litigation (and who they will move forward with as their counsel). I conclude by explaining that no attorney, at such a preliminary stage of litigation, before a witness has been interviewed, written discovery has been exchanged, or a pleading has been drafted, can validly opine as to whether a client presents a “winning case.” I do my best to reassure, however, that throughout the litigation process, as the good and bad facts develop, I will candidly assess the likelihood of success with the client.

Third, I try to talk about the results that I can deliver separate and apart from a “win.” Think of this as the value proposition – what value can I deliver from my legal services? For example, I may be able to open lines of communication with an adversary party (through their attorney) where the lines of communication are frayed. I can almost certainly deliver an understanding of legal rights and obligations. I may also be able to deliver strategy and insight as to avoiding exposure for future claims or omissions. And ultimately, depending upon how the facts develop, I may be able to deliver productive settlement discussions.

Finally, be at peace with the approach you take. On one side of the spectrum, some attorneys are more aggressive than others in terms of their “close” or their “pitch,” and a large measure of their internal success metric is the percentage of potential clients who meet with them who sign a retainer agreement. On the other side of the spectrum, some attorneys are more evaluative in their approach to potential clients and are reticent of setting unreachable expectations early on, which may lead to client dissatisfaction and anger later on if those expectations are not attained.

Wherever you fall on the spectrum, make sure your approach matches your personality and you will find self-satisfaction. And if you are on the more aggressive side of the spectrum, review Maryland Rule 19-307.1 to make sure you comply.

Jeremy Rachlin is a principal at Bulman, Dunie, Burke & Feld Chtd. in Bethesda, where he practices estates and trusts and civil litigation.

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