The Case From Hell
By Joe Ramsey
Copyright © 2011
Every experienced civil trial lawyer likely encounters an occasional case which drives her nuts. Everything that can go wrong does. The harder she tries to turn things around, the worse they get. How does one deal with the occasional “case from hell”? Some practical solutions which usually work include a disciplined reassessment of the case, getting an independent view, and, finally, gritting one’s teeth and doing what has to be done to get satisfactory closure. Sometimes this means going forward with corrections. Sometimes it means advising the client that the case lacks merit and fashioning an orderly shutdown. This paper assumes that withdrawing as counsel is not an option.
Step Back and Reassess
Common sense and experience teach that busy practitioners can develop blind spots about cases – especially troublesome cases. Unhappily, in a case not going well, we too often come to expect the worst and therefore to accept it. Without realizing it, we lose our direction.
The first suggestion how to deal with the case from hell is to question every important previous legal and factual conclusion. Approach the task with a positive attitude and the expectation that you can find and fix whatever has come to bedevil the case. Set aside ample time. Eliminate distractions. Re-evaluate everything – especially what you have previously accepted as rock solid. Identifying and correcting a faulty conclusion is often the key to getting back on the right path.
Get an Independent View
Especially if your own second look at the case does not suggest any solutions, ask a respected colleague to take a look at the case. There is no substitute for a fresh look. Take the time to do this correctly. The wrong way is to provide an abbreviated oral overview of the case and ask for your colleague’s reactions. The right way is to set aside sufficient time to review critical documents out loud together and to answer your colleague’s questions thoughtfully and thoroughly. This will take discipline on your part because you will likely have long ago grown frustrated with the case. It is important that both of you read and talk about the case together. You will both absorb the written and spoken word. The result is usually synergistic.
By the time you have taken a hard look at every potentially important detail, and especially if you have done so with the independent view of a knowledgeable colleague, it is likely that you will have identified and defined basic problems with the way the case has evolved. You should have a reliable perspective whether the case can be successfully redirected or should be discontinued.
Get to Work on a Fix
Assuming that your reassessment allows redirection and pursuit of a positive resolution, the identification and definition of key problems are usually the first step toward solving them. The remaining steps are to do what has to be done to fix and redirect the case toward a satisfactory resolution. This is usually challenging. Some typical examples are illustrative.
One especially daunting problem which often emerges is that pivotal legal propositions must be significantly revised or even replaced. Such changes will require reconfiguring basic theories. Changes of legal underpinnings always require corresponding factual realignments. All of this will take time and expense.
Another problem often identified is that inefficient communication has taken place between attorney and client. This is not uncommon in business litigation which is document intensive and/or involves multiple ongoing transactions. Fixing this problem may involve reassigning responsibilities in the client’s organization, in your own firm, or both. Personnel and morale issues lurk.
The whole history of the case may result in a harrowing attorney-client relationship. Clients are entitled to time and cost-efficient representation. If the problems should have been anticipated and avoided in the previous handling of the file, you may have to write off some time and/or expense needed to finish the case satisfactorily.
Orderly Retreat
Sometimes your frank reassessment leads to the conclusion that the case is not as strong on the merits as you and your client originally anticipated it would be. Even strong cases can crumble. Cases sometimes sour gradually for a combination of reasons which would have been inconsequential standing alone and were beyond your control.
If your conclusion is that the case should be closed down, you owe it to your client to so advise and to recommend the most time and cost efficient closure you can secure.
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