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  • December 15, 2010

    Case selection criteria: Weighing the risks of litigation as a solo or small-firm attorney

    Before taking a new matter, it's important to thoroughly assess whether the case is worth the time and resources, especially for solo and small-firm attorneys. Attorney Catherine La Fleur offers tips to consider in determining whether the case is right for you.
    Case selection criteria: Weighing the risks of litigation as a   solo or small-firm attorney 

    By Joe Forward, Legal Writer, State Bar of Wisconsin

    Dec. 15, 2010 – Weighing the risks of litigation involves an assessment of various factors, some of which aren’t always predictable at the outset. Milwaukee attorney Catherine La Fleur discusses some factors to consider before “taking the case to the courthouse steps.”

    La Fleur, a small firm practitioner, litigator, and adjunct professor of pretrial procedure and trial advocacy at Marquette University Law School, says the probability of winning based on the facts is just one component in deciding whether to take a case. Competence, time constraints, cost, funding, the client, and procedural issues should also enter the equation.

    In addition, lawyers should assess issues associated with taking cases on referral. For instance, La Fleur and other litigators occasionally pick up cases where the initial attorney didn’t intend to litigate. That may cause headaches if the matter doesn’t settle, and the lawyer decides to refer it to another lawyer for trial. Assessing how much work will be necessary to prepare for trial in that situation is an important factor in deciding whether to take a case.

    Assessing the client

    No matter how good a case may be, assessing the client should be the first step in deciding whether to handle it. Aside from clients that cause a conflict of interest, choosing good clients can lead to more profit and less stress in both the short- and long-term.

    “Sometimes the chemistry just isn’t there,” La Fleur said. “If you don’t like a client at the first meeting, that probably won’t change down the road.”

    La Fleur said red flags include clients that avoid straight answers to questions, seem more interested in their own agenda rather than the lawyer’s advice, or demonstrate uneasiness about the lawyer’s fee arrangement.

    In addition, assessing whether the client has the ability to pay, will remain cooperative and respectful towards the attorney and the attorney’s staff, or has unrealistic expectations is an important first step that can usually be determined upon an initial meeting.

    Catherine LaFleur

    Catherine La Fleur, a small-firm practitioner in Milwaukee, says risk assessment and proper planning can reduce surprises when it comes to litigation costs and expenses.

    Beware of the client who is willing to pursue the case despite the fact that it will cost more to litigate than the amount in controversy, La Fleur says.

    “While the client may nod in agreement at the outset and say that they would rather pay you than the opposing party, regret may arise after they have been paying for a while,” La Fleur said.

    Developing a checklist of important client selection criteria can help attorneys assess potential clients. Matthew Homann, founder of LexThink LLC, has developed a simple Client Worthiness Index that helps attorneys predict the potential for a good lawyer-client relationship.

    Assessing the ethics

    Ethically, a lawyer cannot take a case unless he or she is competent to handle it. Competency depends on experience and knowledge in a certain area. Lawyers may be tempted to “dabble” in order to generate a client base, or expand an existing one.

    But ethics rules require “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” SCR 20:1.1. In a recent PINNACLE webcast entitled “The Top Ten Mistakes Lawyers Make,” State Bar Ethics Counsel Tim Pierce said, “if you don’t know how to do it, and you don’t think you are going to have the time and resources to figure out how to do it quickly enough to provide effective representation of the client, say no.”

    In addition, a lawyer must act with diligence and promptness in representing the client, and keep the client reasonably informed about the status of the matter. SCR 20:1.3-4. That means lawyers must review their current caseload and decide whether they can meet these ethical considerations given the time commitments involved.

    “A lawyer should review current obligations against the urgency of the potential client’s needs,” La Fleur said. “Are there issues like a statute of limitations that require immediate attention?”

    Assessing cost

    Case selection tips

    1. The client. Decide whether the client is right for you, and whether they will be able to pay for your services.

    2. Ethics. Can you competently handle the case? If it’s not your area of law, do you have the time and resources to learn?

    3. Costs. Litigation can be unpredictable. Know what the case will require, and whether you or your client will be funding the case at the outset. Will the opponent be able to pay in the event a successful judgment is obtained?

    4. Investigation. Know what the case will require even before you file a complaint. What will it take to gather evidentiary support? What will it take after the complaint is filed? It may include court and subpoena fees, depositions, transcript fees, records, experts, travel & lodging, meeting space, private investigators, among other costs.

    5. Procedure. Know whether the venue will increase or decrease your chances of winning? Is this venue good or bad for your case? Who are all the parties involved? Who is the opposing counsel? Is this a complex case that will require extra staff?

    While a lawyer’s financial situation should certainly be considered in selecting cases, La Fleur said once the decision is made, it should never influence the way in which a case is resolved. In other words, the lawyer should commit to the possibility of litigation if litigation is possible.

    That means lawyers should assess upfront the client’s ability to pay expenses and attorneys’ fees, win or lose. La Fleur said clients sometimes don’t understand that very few cases allow an award of attorneys’ fees. Written agreements can set realistic client expectations.

    Because litigation is unpredictable, unforeseen expenses can pile up once the lawyer is fully entrenched. Planning for unpredictability, and informing the client of potential costs, is an important aspect of developing a good lawyer-client relationship.

    Investigation costs

    Before filing a lawsuit, lawyers must have sufficient information to form a reasonable basis in law and fact. For smaller firms that don’t have the pooled financial resources of bigger firms, La Fleur says it’s important to think about the costs associated with an initial investigation.

    Aside from safe harbor provisions that may apply, La Fleur reminds attorneys that Wis. Stat. section 802.05(2)(c) requires that claims have evidentiary support or are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

    Failure to support filed claims, or continuing unsupported claims, may result in sanctions. Thus, identifying the costs required to meet that “evidentiary” threshold is an important part of assessing the case initially, according to La Fleur.

    “Cases involving eminent domain, medical negligence, or products liability are far more involved than the landlord-tenant case,” La Fleur said. “Investigation costs will depend on the type of case, but most litigation cases at least involve depositions.”

    Depositions require costs for preparation of deponents, a court reporter, and time to depose. La Fleur said deponents who are not parties must be served with a subpoena along with the statutory witness and travel fee. In addition, deposition transcripts run about $3 per page and deposition subpoenas average $35-$50.

    Service, filing, and other court fees add cost. If the investigation requires certified medical records or private investigation, those expenses aren’t cheap, La Fleur said.

    Most courts order mediation and mediators charge $200-$250 per hour, according to La Fleur. Retaining experts can also be expensive. An expert’s work report could average around $5,000, not including the fee for appearing to testify.

    Procedural and other considerations

    Venue is another important factor in deciding whether to take a case. Consider upfront whether the proper venue will be beneficial or detrimental to the case, or whether the proper venue will add costs to the lawyer’s bottom line, La Fleur says.

    Special venue considerations include the court’s reputation in resolving certain types of cases, the population from which a jury will be chosen and their ties to the opposing person or entity. The reputation of a certain judge or judges who are likely to hear the case is also another factor to consider in weighing the odds of winning.

    La Fleur also reminds attorneys to know their opponent, because a tough opponent can increase costs exponentially. In addition, lawyers should consider whether a complex case will require additional staff to prepare for litigation.

    Conclusion

    Litigation is an unpredictable undertaking. Preparing for the unexpected, and examining the pros and cons of taking a new case can make the difference in the prosperity of a lawyer’s practice in both the short-and long-term.

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