How to get good legal advice
Risks and rewards drive choices. Legal issues also require an understanding of the game and the rewards. In litigation, for example, you often risk the random assignment of a judge. The judge may run her courtroom tightly or loosely, or she may be known to rule impulsively. The risks may include the likely composition of the jury based on your values and perspectives. Another drawback could also be the opponent’s financial resources. Those funds may be available to pay a sizeable verdict, but they are also available to aggressively defend the case before it goes to trial. Or on the contrary, the opponent can declare bankruptcy at the end of the litigation.
Assessing risks and rewards is much like an underwriter assesses credit risk by assigning a credit score. No case is perfect, but when evaluating it, the dollar amount marked as the “target” value must accurately incorporate both strengths and weaknesses.
Competent legal counsel will carefully review the law and the evidence with their clients at various stages of litigation. This review is similar to a market valuation often used in business, known as a “SWOT.” The acronym is “Strengths, Weaknesses, Opportunities and Threats”. This process often runs backwards from a future point in time when a judge, arbitrator, or jury will make a decision. The process is always to ask what evidence we have and whether the evidence meets the requirements of the law. For example, is this witness a compelling witness who will make a positive impression on the witness stand? Perhaps the question will be whether a judge will allow evidence to be introduced in the case, such as evidence in an age discrimination case that the employer has discriminated against older workers in similar circumstances in the past.
Sometimes the risk is that juries in a particular jurisdiction are known to favor employers or corporations and are unsympathetic to employee lawsuits. A good counselor will have information about the potential jury, judge, or arbitrator. He will also get information about what verdicts have been for similar cases in that jurisdiction.
An effective attorney will reassess the risks and rewards as the case progresses and as new information is obtained. Witness statements, newly discovered documents, expert opinions, and cash reserves can all be grounds for a material change in valuation.
All of my clients must also assess their level of resolve to move forward with the case to a conclusion by arbitration award or verdict. The opponent will use all available negative information to discredit the Claimant. An aggressive adversary will attempt to scare and humiliate a party with embarrassing facts, such as a prior arrest or incarceration, addiction, job termination, or psychiatric history. Often this information can be excluded from the evidence, but the client must be resilient enough to accept that the other party will use these tactics to shift the focus of the wrongdoing from him.
A competent legal advisor will know and articulate the opponent’s arguments from the beginning before the case is filed or served. Just as important, the lawyer must have the courage to weigh the evidence as documents and witnesses are presented and tell the client that the case may not be as airtight as first thought. This candid reappraisal is a service because it connects the client to reality and saves him the time, emotion, and effort of a prolonged battle without the desired reward.
In my office, we do a role play. We, as lawyers, not only defend the opponent’s case, but we play the role of witnesses, seeing the battle through his eyes and with his emotions. We ask our clients to engage with us in this pretrial drama, as if they were the opponent, telling the opponent’s point of view of things as the client will likely hear it from the witness stand.
Most customers find this role play difficult. But since we remind them again that they are “out of place” they return to the opponent’s testimony, no matter how much they don’t believe it. A positive outcome of the exercise is the client’s appreciation that there is another plausible narrative competing for arbitrator’s or jury’s acceptance. This deeper understanding gives the client the power to assess risks more accurately. This knowledge, in turn, helps the client set the best settlement target.
In conclusion, the legal advisor will guide his client to arrive at a target settlement number. If they cannot reach that number, both the attorney and the client can be confident that trial is the best option.