Trial Magazine

One of the most important decisions you’ll make in your practice is whom to represent. You’ll need to decide whether a prospective client is someone you can commit to working with and whether the case will be a good fit for you and your firm. Just as important as the clients you choose are the ones you elect not to represent.  

Do they listen? Are they clear? Are they argumentative? These intangibles can help you decide.

While potential clients have had the opportunity to vet your firm, you will know very little about them when they come to you. An initial phone call with prospective clients, even if brief or introductory, can offer valuable information to help you decide whether to meet in person. Do they listen? Are they clear? Are they argumentative? These intangibles can help you decide whether a case—and a client—is for you. As painful as it can be to tell someone that you won’t be able to help, it could be much worse to spend years representing a client who is not the right fit.

If you feel it’s best to decline a potential client, explain the realities of lawsuits, including the risks, time and costs, and emotional drain. Most people are unaware of the myriad hurdles inherent in a plaintiff’s lawsuit, and potential clients often appreciate a clear explanation of the road ahead. Tell people you choose not to represent that you’re providing your own assessment of the case and that other lawyers may not agree. Advise them to seek a second opinion if they wish, and remind them of the applicable statute of limitations.

When declining to represent someone, it also is a good idea to check state ethics guidelines for any requirements. For example, if you reject someone’s case on the eve of the expiration of the statute of limitations, you may expose that person to adverse consequences and prejudice his or her ability to secure other counsel, which may have ethics consequences. A potential client could file a complaint with a disciplinary panel, and while this wouldn’t rise to the level of a malpractice claim, you still would need to notify your malpractice carrier. 

Likewise, look deeper, and don’t automatically reject a case that another qualified attorney has declined. It may not have made sense for that attorney, but it could be a fit for your practice. If you listen to the prospective client’s story and he or she sounds reasonable and the facts sound plausible, schedule a meeting to learn more.

Early Preparation

Prepare for your first meeting with a prospective client by gathering ­background information about the case and the client.

Obtain records. Ask prospective clients whether they have records related to their claim, and if so, to send you these records before the meeting. For example, if the prospective client is a spouse seeking to bring a wrongful death action, ask for the marriage and death certificates. In a personal injury case, request relevant photographs and any documentation about the incident or injury. You can try to retrieve records yourself, but asking prospective clients to do so lets you see how willing they are to participate in the case.

There will be instances when you need a client’s timely assistance, whether it is signing and returning papers or providing accurate information. A prospective client’s follow-through on early assignments can be an important consideration when deciding whether to take a case. For example, one potential client came to me with a strong case but a rapidly expiring statute of limitations. After I explained the difficulties the tight deadline presented, she obtained every necessary scrap of paper within a week.

Research potential clients. Before the initial meeting, learn more about the prospective client. Check social media first, and then Google the person. If the claimant has told you that he suffered severe back injuries in an automobile crash but his Facebook page shows him recently cliff diving, that is the first thing you should discuss.

You also may want to check whether prospective clients have any criminal records and whether they have filed—or defended—other lawsuits. For example, in New York, you can enter their names into the state’s online court system to check for other lawsuits. To obtain personal records concerning a potential client, you may want to enlist an investigator. Defense counsel will obtain all of this information—instead of being blindsided by it, be prepared, and discuss any potentially problematic information.

The Initial Meeting

The first meeting with prospective clients sets the tone for the rest of the case and, like an opening at trial, should outline roles and expectations.

First, note their appearance. Did they dress up to meet with you? Are they neat and clean? If not, can that be explained by their injury or depression? If they don’t present well to you, chances are that they won’t to others. Ask your staff for their reactions and listen carefully, particularly if they tell you that the person was difficult or rude. Remember that your and your staff’s first impressions of a prospective client are likely to be the same as those of jurors and opposing counsel. 

Explore any dissonance you observe between the prospective client’s complaints and behavior. I often ask about current pain level—if the person tells me that his or her pain is a 10 out of 10 but is moving and speaking without obvious restriction, that is a red flag. Trust your instincts, and if something seems a bit off, probe further. Visualize yourself in court with this person—how are you going to feel representing him or her before a judge and jury?

Don’t forget that potential clients also will be sizing you up. Ask what they are looking for in their counsel. How you work might not mesh with prospective clients’ expectations. Know yourself and your strengths, and be willing to address their skepticism. For example, I may not fit everyone’s notion of what a trial attorney sounds like, but I will tell potential clients about my past trial experiences. Ultimately, if it doesn’t seem like a good fit, consider referring a potential client with a strong claim.

Set boundaries and expectations. If you both agree to work together, use the initial meeting to establish limits.

Many clients do not have firsthand experience with litigation procedures and may not understand how lengthy the process can be. Answer any questions about litigation procedures as best you can, but be careful not to overwhelm clients with too many details at this early stage. Let clients know that you will be appearing at conferences, but that it’s not necessary for them to appear as well. Clients often are concerned about their level of participation and whether they will be confronted at their deposition by the person against whom they have brought the action. Also be sure to talk to clients about the importance of sharing every fact with you, even details they otherwise wouldn’t want you to know, and then trust but verify the information they share.

Let them know how best to communicate with you and the firm’s staff. Explain that there will be times when you cannot take a call immediately, but promise that they will be contacted by a certain point—such as the end of the day—and then be sure you or a staff member calls.

Take the time to understand clients’ expectations of your relationship. Ask how frequently they want case updates and their preferred method of contact. Some clients are more anxious about their cases and will frequently call, email, or text. Emphasize up front that the speed of a case is often outside of your control. If the client is calling every few days requesting a status update, explain the reason for the delay (for example, the judge is reviewing a motion), and set a schedule for check-ins. Better informed clients are less stressed, happier, and easier to deal with than clients who feel they’ve been neglected.

Frequently, new clients tell me that they are “not the type of person who sues.” Aside from advising them of their legal right to file a lawsuit, I tell them that a meritorious case often helps the public, whether by improving the quality of medical care or products or by resolving other safety or security issues. I discuss the courage it takes to bring such an action and the potential positive outcome for the community as a whole.

Discussing case value. Inevitably, clients will ask what their case is worth. Carefully consider how you answer this. Your client most likely will never forget any numbers that you provide. Although it’s tempting to project an anticipated financial outcome, it is best to avoid speculation, especially because your analysis may change after you see all the records and take depositions.

Instead, offer a range of possible values based on the facts of the case, as well as settlement values for cases with similar facts and injuries. By the time you have a settlement conversation with this client, years may have passed, and any number you initially threw out may no longer be valid.

Rather than discussing the case’s value in detail at the initial meeting, use this time to educate your client about recent verdicts and settlements. Give information—including statistics you’ve found through the court system, jury verdict reporters, or appellate cases—on the likelihood of a positive verdict, and discuss the benefits of settlement, such as certainty and faster recovery. Whenever discussing possible outcomes, document your conversation so that you can refer to it when the subject comes up again.

Know your resources. Carefully evaluate the economics of the case. Will your other cases suffer if you take this one? What is the realistic range of value? How much time do you think the case will require? Factor in the likely cost of legal filing fees, service of process, getting medical records, expert reviews, depositions, and trial expenses.

For example, when weighing whether to take a medical negligence case, I determine how many parties must be named as defendants, whether experts with different medical specialties will be required, and whether it is an area of medicine that I know well or will need to research extensively. I also consider whether a potential client has a complicated medical history that may make it difficult to identify and sort out causation issues.

Sometimes taking a case may not make the most economic sense, but you strongly believe that it would be a meritorious action. Maybe the case has the potential to change precedent or correct a systemic injustice. As a sole practitioner, I have taken cases for these reasons, and for the most part, I’ve been happy with my decisions.

Taking a modest amount of time initially to vet a prospective case and being willing to trust your gut can be beneficial in the long run.

Susan Dennehy is the founder of the Dennehy Law Firm in New York City and can be reached at susan@dennehylawfirm.com. Copyright © 2019 Susan Dennehy.