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February 7, 2014

Friday 5: Red Flags for Litigators in New-Client Interviews

by contributor
red flag
Because meeting a prospective client for the first time is a little like going on a blind date.

red flag

Meeting a prospective client for the first time is a little like going on a blind date: You have limited time and information to decide whether you want things to go any further with this person. Below are some things I and other experienced counsel have learned about sizing up a potential new case.

1) The Positive File Box Sign.

I have a friend who worked in an emergency room.  When someone who did not appear sick or injured arrived in the ER already equipped with a change of clothes, toothbrush, etc., the staff cheekily called it the “positive suitcase sign,” an indication that the person was a hypochondriac or needed a room for the night. The prospective client sometimes arrives with a file box of paperwork or documents regarding his or her case. This may be a sign of an organized person who has helpfully gathered some useful potential evidence. However, it might also be the sign of an obsessive client who is going to blame you for not turning that box of paper into legal victory.

Tip: Don’t commit to the case until you’ve had a chance to thoroughly review those documents on your own.

2) The Certified Pre-Represented Client.

Seasoned practitioners generally agree that one of the most hazardous scenarios is where the prospective client has fired or been fired by a previous lawyer regarding the same matter. Regardless of who fired whom, the fact is that something went seriously wrong, either with the case or the lawyer-client relationship. I have taken such cases occasionally, where I became convinced that whatever caused the prior rift would not repeat itself (e.g., the previous lawyer withdrew for health or other personal reasons). But I’m extremely careful about it.

Tip: Request the client’s file directly from the previous attorney and review it before committing. If the client had more than one previous lawyer, the chances of things working out with you are virtually nil.

3) The Sense of Entitlement.

I once interviewed a prospective personal injury plaintiff who felt that the damages she was entitled should include the fine she was assessed for having no driver’s license or insurance when she was rear-ended by the at-fault driver. Her reasoning: She had been driving for years without a license or insurance, but had never gotten caught until the accident resulted in the police checking her record. When I diplomatically advised her that neither the law nor most people’s innate sense of justice supported her position, she announced she would find a lawyer whose thinking was more in line with hers.

Tip: Use your lawyer’s sixth sense to determine whether your expectations about a case are out of line with your prospective client’s. Disparate expectations are a leading cause of lawyer-client strife.

4) I Think You’ve Confused Me with Batman.

Many would-be clients’ experience of the legal world is limited to what they’ve seen in TV shows and movies. Understandably, they may believe that the party whose lawyer looks the best in court or yells the loudest will come out ahead. As lawyers realize, the reality is that boring old facts and law usually determine the outcome of a case. I interviewed a prospective new client who had a PI case with a realistic settlement value of $15,000 to $25,000. But she was already convinced it was worth six figures. Why? “I know you can do that for me, Michael,” she said. “I just know it.” I was flattered, but I had less confidence about that than did this woman who had met me for the first time 15 minutes earlier. I had another case where a mediation ended with the other party’s final offer being a few thousand dollars below what my client had talked himself into believing he would get. “I thought you were supposed to protect me from this!” he shouted.

Tip: Again, assess as early as possible whether your client’s expectations are realistic.

5) A Matter of Principle.

Obviously, one of our essential purposes as lawyers is to uphold the principles of justice. But sometimes there’s a fine line between “principles” and the desire to satisfy one’s ego or teach an opponent a lesson. My first legal mentor put it more succinctly: “Never believe your own B.S.”

Tip: When evaluating the case of a prospective client, consider whether a true principle is involved and remember that it’s still the nuts and bolts of the case that likely will determine the outcome.

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