Potential client with a bad case: what to say
Every lawyer has more than one story about a potential client who contacted them, desperate for them to take their case, and it was just … a terrible case. Sometimes the potential clients are nice, maybe the “little old lady from the neighborhood” or somebody from church or a local volunteer group. Other times, the potential clients are rude, pushy, they badger the lawyer, they call constantly and abuse office staff’s time and test everyone’s patience. Most of the time, the potential client falls somewhere in between those two extremes.
So what do you do? If you’re a new lawyer, you probably lack the experience necessary to really tell who the problem clients are going to be within a few minutes of talking with them, so you may be tempted to overlook the bad personality traits or the awful facts involved and stretch to make the potential case work… perhaps we can call this Fox Mulder syndrome: “I want to believe!” That’s all well and good for FBI agents on TV who appear to get paid no matter what, but the law is both a profession and a business, and it’s critical to keep the business side in mind at all times, but especially when evaluating new potential clients/cases.
Of course, for experienced lawyers, much of that experience and being able to tell whether a potential client or case will be a good one or not comes from … yep, that’s right: having taken the bad ones and suffered through them. Sometimes it’s the case: perhaps there’s just no evidence to prove the claims, the damages are speculative, or the potential client’s claims are just so outrageous that it’s almost impossible for a judge or jury to believe it really happened like they claim; often, those problems go hand-in-hand. Other times, it’s the client: it could be the best case in the world, or a clear liability case with reasonable damages, but if the judge or jury dislikes or won’t believe your client because they laugh nervously every 20 seconds or have a bad personal habit or rant and rave about how the world is out to get them, it’s just not going to matter much in the end.
Wise older lawyers always say, “it’s not the one case that you take that will make you rich, but the ones that you don’t take.” This is a derivation of the Warren Buffet investment rule: #1, don’t lose money. For a bad case or a bad client, it’s very unlikely that you’re going to be Superman or Wonder Woman and turn it around into a profitable case. If the best you can hope for is to break-even, it was not a productive use of your time. And, don’t forget one other piece of Old War Horse advice, “the case is never as good as the first day it walked into your office.” (While that’s not always true, it’s true more often than not.)
So what do you say to these cases and clients? A lot depends on their personalities. The more volatile folks need to be handled carefully, and occasionally you may need to be very forceful with them. But as a general rule, if you’re rejecting a potential case or client, you should be very clear: I don’t represent you, I’m not going to represent you, good luck with your case. And, whatever you do, don’t forget to send a non-engagement confirmation letter to the prospective client. First, it’s a good idea to refrain from expressing any opinions regarding the merits or demerits of the case. Next, authorities are split on whether you are required to explain any applicable statute of limitation periods. One argument is that the safe route to take is to reveal them, if you’re aware of any. But there may be multiple limitation periods with multiple triggers, and you may not have all of the information needed to accurately state the deadlines, so the counter-argument is why do you want the non-client to rely upon some parting advice about the statute of limitation when you may not have all of the information you need? It’s not worth the risk. As a final admonishment, in non-engagement confirmation letters, less is more, so err on the side of brevity.
As in all things, with prospective clients you should trust your instincts. Many of the lawyers and law firms that we have represented in malpractice and disciplinary actions say that they wish they had trusted their initial, gut reactions about the client or the case. Consulting with another lawyer about a potential client or case may help you get an objective viewpoint or alert you to red flags that you hadn’t noticed, and is well worth the time investment.
