To Take or Not to Take?
by Stephen W. Holaday
Tieman, Spencer, Hook & Hicks, LLC, St. Joseph
We all know what a monster case looks like. It’s the case in which even the worst attorney can get the best testimony and the best result. In the personal injury setting, liability is a no-brainer, the damages are enormous and collectability is no issue. In the defense setting, there are only nuanced legal issues which will require extensive motion work, and the client says, “It’s the principle, not the dollars.” Of course you sign those cases up--you don’t hesitate.
What about cases that are nothing like a monster? What about the Plaintiff’s case with questionable liability, or minimal damages, or both? What about the defense case which appears to be a loser and the client wants the case resolved quickly, and on a budget? How do we as young lawyers decide when to take – and more importantly, not to take – those cases?
Impressing partners and wanting to stay busy were two, of many, reasons I used to take nearly every case that came my way. But like clock-work, months later I would find myself mired in hotly contested litigation and wonder, “Why did I take this case?” About eighteen months ago it dawned on me that my practice would be much more rewarding if I could simply learn when to say, “No.”
When evaluating a Plaintiff’s case, I have now gone back to the basics. Instead of taking forty-five minutes for the initial intake, asking only the most superficial of questions, I have started digging more deeply into the facts of the case as the Plaintiff understands them. Recently, I spent three hours with a husband and wife discussing their case before making a decision about whether to take it. The liability was questionable, and their injuries were minimal. They had extensive pre-existing conditions which would have become incredibly problematic over the course of litigation. At the end of that initial meeting, I stepped outside and spent some time alone contemplating their case. I estimated the probable amount of their recovery, and the amount of time and expense necessary to achieve that likely recovery. When I compared the first with the second, it became apparent to me that this case was nothing more than a loss leader. I repeated the entire mental case evaluation because I am so hesitant to turn down work. Finally, with adequate resolve, I went back to the conference room with the husband and wife and let them know that I would not be able to take their case. I was taught that too much work is better than not enough, so it was a difficult decision.
My decision was vindicated last month. I received a telephone call from another attorney whom I have known for years. The husband and wife had hired my attorney friend after I turned down their case. The attorney called to “pick my brain” regarding the pending litigation. The insurance carrier had denied liability, was calling into question the entirety of their injuries, and had indicated that trial was imminent. The attorney and I met up for drinks and after discussing the case, all she said was, “You made a great decision not taking this one.”