Although I agree with your analysis of the decision-making processes used by attorneys, I remain troubled by attorneys who, for whatever reason, fail to accurately and/or timely convey the risks of a case to his or her client.

I imagine the shock and sense of betrayal of a client who for months (or years) has maintained an understanding of the potential value and chances of success of his/her case - an understanding bolstered perhaps by posturing arguments made by the attorney - only to learn the attorney actually believes the value of the case to be much less.

As a paralegal, I have seen this happen...and, I don't understand it. Why wouldn't an attorney share his or her concerns with a client early on? I've suggested using a decision tree analysis with clients as a visual for grasping the costs and the risks of litigation - but my suggestion is often met with a roll of the eyes by the attorney. :)

I'd very much appreciate knowing your thoughts on this.

Thanks!

Debra Healy
agree2agree
Healy Conflict Management Services

I've mediated enough cases now not to take anyone's initial description of any dispute as gospel and I truly believe what I preach -- that if people are given "permission" to ask pointed questions of the professionals who serve them, either the professionals will rise to the occasion or the clients will feel sufficiently empowered to get a second opinion from another professional in the practice area at issue.

I'm obviously hearing only one side of the story when I get these unhappy emails.

In answer to your question "why wouldn't an attorney share his concerns with a client early on" I suppose I have a list, ranging from overwhelm (especially for the sole practitioner) to "simple" conflict avoidance. Many mediators (and I am one of them) say that one of their prime duties is to deliver bad news to a client in a way the client can hear it. Some mediators, and many lawyers, are not skilled at this. Lack of skill obviously doesn't justify an attorney's failure to communicate early and often with his client about the way in which the case is going, but I do understand the pressures attorneys work under, particularly those with non-repeat litigation "players" who sometimes cannot accept the fact that their claim isn't worth what everyone originally thought it might be.

My job is to direct people back to one another, not to "fix" the problems they have with one another, right?

Thanks for the book suggestion -- I might not have seen it otherwise. I ordered Kiser's "Beyond Right and Wrong" this morning, and I'll let you know how it turns out--

John DeGroote

I very much appreciate the pressure and stress of "overwhelm" that attorneys must deal with on a daily basis. Having always worked as a plaintiff's paralegal in small firms on cases at times involving incredible odds (e.g., the Department of Justice and four major federal defense contractors in a case in which we represented 49 plaintiffs), I also know that eternal optimism and the need to see "justice prevail" can also blur reality.

I've also seen attorneys who assume their clients know everything the attorney knows about the litigation process. Further, they assume the client knows when the attorney is merely posturing. However, the client may be hanging on every word - which makes it that much more difficult if the attorney, seemingly out of nowhere, expresses little faith in the client's case.

I suppose this explains, at least in part, why I am passionate about the possibilities (and realities) of non-adversarial approaches to dispute resolution. I'd much rather spend time working to create an environment of trust and understanding than strategizing on how to "win."

Yes, I know that makes me sound incredibly naive!! Kumbaya!! Group hug!!

Thank you, thank you for providing such wonderful opportunities for connecting.

Debra

P.S. We are having some absolutely gorgeous February weather here in Oregon. Hot tubbed under the stars last night. Amazing.

Re hot tub under stars: envious!

An experienced attorney should know better than to give a client an evaluation of the case based solely on incomplete information provided by his own client. Instead he should give a range of possible outcomes with many caveats. To the extent that the attorney has sold himself and his client on his client's own view of the case, the client has a legitimate beef if he is suddenly told to settle a case for $10,000 that his attorney previously told him was worth $2 million.

I always try to be direct in setting ranges for what I believe is a fair value for a case. Sometimes this can be very difficult as negative information can just bounce off clients. The education process can be delicate because the effort to break through that resistance can often feel to the client that you are not on their side which obviously is not the case.

I like your philosophy of giving a "range of possible outcomes with many caveats." The difficulty sometimes is ensuring the client actually hears the caveats.

I like working methodically with the client through a decision tree analysis and discussing the risks associated with each step of the litigation process. We attempt to assign a percentage to each risk (e.g., Motion to Dismiss, Motion for Summary Judgment, etc.). Yet, no matter what, if we get all the way through the analysis to a jury trial, I hand the client the die and ask if he or she is willing to risk a roll.

An aside: I highly recommend Thomas Geoghegan's book "The Law in Shambles."

Thanks for starting this discussion, Vickie - and, thanks to everyone who's joining in.

Debra

I wouldn't recommend these kinds of approaches with clients who have traumatic brain injuries (TBIs). We had such a client and the mediator suggested our client give him $100,000 and let the mediator try his luck with his imaginary slot machine. The client took the whole thing very literally and thought the mediator was trying to get money out of him. Our client stormed out of the room, the building and down the street. It took me chasing him, buying him s pack of cigarettes, and listening to an hour + of ranting and raving before the client was eventually willing to return to the negotiating table. The mediator never had a clue what had happened. . .AIIIEEEE!!!

Thanks!
Debra

Great post. I agree that there is no solution to decision error, but that's akin to saying there's no cure to a particular disease. While true, we can manage decision error through the use of decision and risk analysis techniques. We can also manage client expectations.

Also, for your readers, the study that you referred to can be found in the Journal of Empirical Legal Studies Volume 5, Issue 3, 551–591, September 2008. It's an interesting read for those interested in quantitative analysis and its applications to the law.