Expressing scepticism about clients’ (and potential clients’) cases

I shared a recent blog with a past client I highly praised in the penultimate paragraph.  I was somewhat taken aback when she responded with mostly warm regards but also with, “I’ll never forget two of the days we worked together – the first day when your skepticism of my case was very apparent….”  I was indeed skeptical of her case when we first met, for reasons explained in the conclusion of this lecture material on enforcing court orders.   However, I didn’t see my scepticism as a form of negativity, but rather honesty.  An explanation is in order.

Any client or potential client approaches an attorney with a goal in mind.  In family court there is often someone who will actively resist my clients’ goals: that’s what makes a case “contested.”  When the contesting party has his or her say in court, that party will vigorously attempt to defeat my client’s goals by contesting my client’s claims.

For example, I may be approached by a father seeking custody of his child.  We will have to develop some legally relevant and factually provable basis to obtain this goal. Perhaps he will claim he deserves custody because the child is not doing well in the mother’s care.  Mother, assuming she resists father’s goals, will try to prove that the child is doing fine in her care and will further try to prove that father couldn’t do any better.  If this father approaches me seeking custody and I simply tell him he has an excellent chance of obtaining custody if he hires me, I have done him a great disservice.   In that example he would expend money and energy without developing a theory as to why he should obtain custody, without exploring how he will develop proof to support his theory, and without exploring whether he has a budget to develop this proof.

In any legal claim that another person or entity is likely to contest, an attorney actually does the client a service by expressing initial skepticism, as that is how an attorney develops an understanding of the other party’s potential defenses and how to counter those defenses before the client formally pursues the claim.  For many potential clients the greatest service an attorney can offer is to warn that client against pursuing a claim with little or no chance of success or which can only be successful on a budget greater than the client is capable of or willing to sustain.

While I may express initial skepticism about my clients’ claims, in nineteen years of practice I have yet to have a client unhappy with me because he or she recklessly pursued a claim without being warned of the risks.  There’s no shame in assisting a client pursue a claim with acknowledged risks that then fails due to these acknowledged risks.  However having a client pursue a claim that fails due to foreseeable risks that were not initially explained to the client is a subtle form of dishonesty and a subtle breach of an attorney’s fiduciary duty.

Clients seeking counsel to pursue a claim would be better off asking how that attorney will go about proving their claim and overcoming weaknesses in their case than simply asking whether they have a “good” claim.

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