Case Evaluation: Critical Factors One Cannot Find in Law Books

My clients are usually entrepreneurs who founded a successful company and then find themselves dealing with their first lawsuit. In the initial intake meeting, clients are focused on explaining the facts of the case, asking what law would apply and evaluating likely results. These are fine and necessary subjects. However, I find it necessary to steer the conversation toward factors that cannot be found in law books, but which I have learned in nearly thirty years trying cases.

Clients conditioned to an “L.A. Law” view of the trial process – the popular 1980’s lawyer show in which new cases were discussed in one episode and tried in the next – want to drive right down to the courthouse be found right or wrong. Clients need to understand that trial of their matter would in most courts be scheduled no earlier than one year from filing of the complaint, likely up to two years or more. The latest round of budget cuts in state courts have increased the docket each judge is handling and therefore extended time to trial. See “Budget cuts force California courts to delay trials, ax services.”)

The expense of litigation comes as a shock. Most attorneys charge by the hour. Even at our rates, which are discounted from those charged by our larger competitors, fees run from the tens to the hundreds of thousands of dollars, possibly millions, depending on the case’s intensity and duration. Knowledge of the potential expense of litigation can dissuade some clients from filing an action or cause them to reconsider the possibility of compromise. Some clients begin vowing to vindicate principle at all costs, only to look for a way out after months of litigation with trial still distant. I encourage clients to think of litigation as a series of steps where, after negotiation has initially failed, each side spends money forcing the other to react and teeing up preliminary issues for decision, in the hopes of obtaining an advantage and returning to the bargaining table. The ultimate risk point for each side is the trial, a point reached only where the two sides cannot seize opportunities that may appear throughout the case to identify a reachable compromise and end the mutual expense.

While I am not afraid to hazard a prediction as to the likely outcome of issues, clients need to understand that initial evaluations usually evolve as information emerges. Ultimately predictions about how judges and jurors will react are closer to art than science. Initially I only have a chance to read documents and hear the information volunteered by the client during intake. Months later I will see, sometimes for the first time, documents produced by the other side or third parties, and will hear the testimony of other witnesses, all of which may affect or undermine my initial case evaluation. While I am a decent proxy for how judges will see issues, each of us having decades of legal education and experience, jurors will likely have a more gut level reaction to the witnesses and evidence and no legal training other than fifteen minutes of jury instructions read at the end of the case. (See “Will Juries Uncover ‘the Truth?'”) Some clients are realistic that evaluations can change and different conclusions can be drawn from the facts and the law; others have difficulty seeing any point of view other than the unshakeable conviction with which they started. The former are more likely to reach an acceptable outcome of the litigation process; the latter are more likely to wind up frustrated.

I provide all of my clients with counsel concerning the likely outcomes of actions throughout each case. A few cases will end in a trial that will test the accuracy of my predictions. Clients who are not only armed with this counsel, but who also appreciate the delay, expense and risk of litigation, will be best positioned to reach an acceptable outcome short of trial and most realistic about the risks and rewards proceeding to trial.