{2:40 minutes to read}
When a client first seeks an attorney for advice in deciding whether to pursue a claim or settle one brought by another, the relationship that is established at the outset and decisions made early on can have a significant impact on the ultimate outcome of the matter.
It is the client who has knowledge of the facts and best understands his needs and interests; it is the attorney who has knowledge of the law, which is essential to helping the client achieve the best results.
The client cannot achieve his goals without effective advice from his attorney; the attorney cannot give that advice without full disclosure from his client. Therefore, clients need to be completely level with the attorney, so that the attorney is better equipped to assist the client. For that to occur, the attorney should make sure that the client fully understands that his communications with his attorney are privileged and confidential so that the client will be completely forthcoming with his attorney – someone whom he may have just met.
What Should the Attorney Ask?
Initially, a client may believe he has a claim against someone or learn that someone may be asserting a claim against him. Early case evaluation should:
- allow the attorney to evaluate the claim or defense;
- enable the attorney to perform any research or investigation that might be necessary;
- give his client advice as to the strengths and weaknesses of the client’s position; and
- present his client with options that may be available – including some creative solutions that may not have been previously considered.
In addition, this would allow the attorney to advise his client of what is involved in litigation – the procedure and estimated costs – and, where appropriate, alternative dispute resolution procedures, such as mediation, that may be available and suitable.
For the attorney to advise his client properly, the client must tell his attorney everything: the good, the bad and the ugly. The client should avoid the pitfall of providing his attorney with only the information that the client believes the attorney needs. At best, the client may not fully understand the significance of some information that he did not provided to his attorney. At worst, if the decision is to hide matters from the attorney, the client may receive advice that turns out not to be accurate. Acting upon bad advice would be the worst outcome of all.
While it may not be possible for the attorney to learn every relevant fact from his client – some information may be exclusively in the possession of the other party or third parties – after a full interview with his client, he should certainly know as much about the facts of the case as does the client. This requires the attorney to ask probing questions – lots of them, even if they lead to discussions about things that ultimately prove to be off-topic. And it requires the client to commit the necessary time – and resources – to best enable his attorney to help him.
What Should the Client Ask?
The client should seek answers to all the questions he has. Many times, litigation is a new and mysterious experience. The client is entitled to guidance and to all options available.
The client should also be frank with his attorney about his goals and interests. A client should not negotiate with his attorney; he should tell his attorney what his interests and thoughts are about a possible resolution and let the attorney help get him there. That does not mean the client’s interests and settlement position may not change over time; they may very well get altered as more is learned in discovery, or motions are decided, or time has elapsed. Regardless, the attorney and client should be on the same page at all times.
The client should expect – in fact, insist upon – his attorney being totally frank with him about the strengths and weaknesses of his case and the viability of his settlement position. Telling the client what the client wants to hear, but what may not be the most accurate assessment, will in the long run not serve either the client or attorney well.
Taking these steps at the outset will allow the attorney and client to determine the best strategy, decide whether to pursue or settle a claim, or explore alternatives such as mediation or arbitration. Moreover, it will help them decide if they should proceed with litigation. Providing the attorney with all the facts early on should lead to more effective representation and a better outcome – and could save a client a lot of time and money.
The next time a claim arises, what will you do?
