What Clients in Civil Cases Need to Know
By Joe Ramsey
Copyright © 2012
Clients want to hear that they have a great case, that it will be resolved shortly, and that it will not cost an arm and a leg. However, our obligation is to tell them what they need to know. We must give them a realistic assessment of their chances of success, how long it will take to resolve the matter, and what it is likely to cost. They also need to know about the emotional distress which usually accompanies civil litigation. They are entitled to our best assessments and estimates of these matters as soon as we can responsibly provide them.
Get the Facts Early
For purposes of discussion, assume that your client is involved in a two-sided business dispute which is document intensive and will involve a need for expert consultation on both liability and damages issues. Both sides are busy, mature, thriving enterprises with multiple percipient employee witnesses. In most of such cases, there are almost always three solid sources which will yield vital information quickly and economically: Your own client; specifically targeted discovery; and outside consultants.
The importance of early identification and questioning of your client’s past and present persons most knowledgeable cannot be overstated. The PMK will know what you need to know. They will also lead you to the traditional paper documents and electronically stored information you need to digest. It is important to identify not only current but also past PMK. Sometimes a past employee is the only source of important institutional memory, and he should therefore be identified early to ensure his availability when needed. Sometimes a past employee is hostile, and he should therefore be identified early to develop the best plan how to deal with anticipated negative evidence. Either way, counsel should take whatever time is needed as soon as reasonably possible to identify, interview, cultivate, and begin to prepare for the testimony of all PMK and to review and analyze all relevant documentation.
Even as you are learning from key people and documentation, you will identify key information you need to know and can only get from the other side. You can usually get needed information available only from the opposition with limited discovery designed to elicit specific, discrete information. Special interrogatories carefully tailored to avoid any legitimate objection are a good device to get such information. An oral deposition limited in scope is often an equal or even better alternative.
Once you know what the basic facts are and what happened, it is important to persuade your client to authorize consulting with one or more well-qualified, objective, independent, outside experts on key liability and damages issues. Your client’s employees whose job performances will be the focus of controversy may not be objective. In order to advise your clients what they need to hear, you need to have an objective assessment. You are more likely to get it from an outside consultant you respect and trust than from an involved employee. Even if your involved employee is relatively objective, you need to know whether you have strong outside expert witnesses who will support your client’s positions.
Chances of Success
Once you are confident you know what you can prove factually and with expert opinion, you should be in a position to provide a reliable preliminary assessment of your client’s position on the merits. Although it is obvious to you and should be obvious to your client’s decision- makers that their chances of success will evolve as the case matures, you should make clear and document that your opinions will necessarily depend on how the evidence develops. An important example in every case is how well the PMK on both sides present as witnesses. Another important example in every case is how well the retained experts on both sides present as witnesses. Although contention interrogatories reasonably supplemented should eliminate most surprises, you should warn your client that one can never be certain what evidence the other side may produce. Even so qualified, your client needs and is entitled to know your preliminary evaluation on the merits as soon as you can responsibly provide it.
How Long Will it Take
One consistent reason for client discontent that I see as a neutral is that cases too often take much longer to resolve than the clients expected. Even relatively sophisticated clients represented by experienced trial lawyers frequently complain about delay which seems to have caught them off guard. I believe that, as trial counsel, we sometimes forget to explain and emphasize how significant delay results from matters outside our control.
One such uncontrollable cause of delay is responding to what opposing counsel does. Even when opposing counsel is known and therefore relatively predictable, one cannot know for sure every move they will make. When dealing with counsel for the first time, it is worth inquiring of colleagues who have worked with them before how they are likely to litigate. Obviously the case will take longer if opposing counsel implements a scorched earth strategy.
Another uncontrollable cause of delay arises from the backlog of civil cases in most urban venues. Trial counsel should be continuously aware of how long it will likely take for civil cases comparable to the one you are handling to get a judge and courtroom for trial. The client should be informed from the beginning of trial counsel’s expectation of delay getting to trial and their best estimate how long it will take to get to trial. Our clients will know what to expect and will appreciate knowing that we are as frustrated as they are with the helplessness in enduring backlog delay.
How Much Will it Cost
Another consistent reason for client discontent is that cases cost much more to litigate than the clients expected. Unless there is a flat fee or a contingent fee arrangement, fees are almost always driven higher by delay. Although the relationship should be obvious even to a relatively unsophisticated client, you should make the link between delay and expense to all clients – even the relatively sophisticated client. As a major example, clients need to know that trial counsel must spend 100 units of time to prepare for trial the first time the matter is set for trial. Even though the odds may be very much against courtroom availability, one cannot take the chance of being unprepared. If there is no courtroom and the case is continued, it will not take a full 100 units of time to prepare the next time, but it will take time to get current. Maybe 40 units the second trial date. The amount of fees and costs becomes more unbearable the more times the case is continued. Not only are you charging for your own time, your expert witnesses who must also keep current are also charging for their time.
Stress
You may safely assume that almost all clients experience significant stress from the litigation of their case. Even the most experienced and sophisticated client representative worries about the risk of loss, the cost, and the delay. You should let your clients and client representatives know you are aware of their worry and concern. You should let them know you are doing all that can be done to alleviate matters and bring the case to the best possible resolution. You should watch for signs that your client is not coping reasonably with the pressure. Although clients are usually able to deal with the strain, I am aware of cases in which clients have needed professional help with substance abuse and treatable psychiatric issues.
Keep the Client Currently Informed
It is critically important that clients know your best assessment of their chances of success, how long it will take, and how much it will cost. It is equally important to update and fine tune such assessments regularly as the case proceeds toward trial or a serious settlement effort. You should let them know regularly, even if it is only to say there is no change from your last report. They certainly need to know promptly of any significant new information which affects these factors – for better or worse.
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