A colleague of mine recently blogged about “How to Find the Right Divorce Attorney for You.” Among the checklist of questions the prospective client was suggested to consider in retaining counsel was, “Did the attorney believe in my case?” That’s a question numerous prospective clients ask themselves when searching for an attorney. I suspect I miss out on a lot of business because I didn’t believe in the prospective client’s case. Yet, I’m not sure that’s the best question for a prospective client to be concerned with. If it is, the “correct” answer to that question may not be what its author or the prospective client intends.
In many situations a client shouldn’t hire an attorney who doesn’t believe in his or her case. However, it’s likely that the correct follow-up isn’t to find an attorney who believes in the case but to not bring the case in the first place. Many potential clients come to my office with legal goals that, after hearing the client explain the situation, are achievable only at great expense, achievable only through fortuitous circumstances beyond the client’s or my control, or achievable only if the court acts in a manner that is possible but unlikely. Rather than telling such prospects that I “believe” in their case, I am more likely to explain that the likelihood of success is dim or discuss the circumstances that might help their goals be achievable. Sometimes these prospects work on changing the circumstances. Sometimes they decide to limit their goals. Sometimes they seek a second opinion–never a bad idea.
However sometimes they keep searching for an attorney who “believes” in their case and they hire that attorney. Three possibilities with this approach: 1) they finally locate the rare attorney who is capable of achieving their goals; 2) they finally locate an attorney too inexperienced to see the situation as hopeless; or 3) they finally locate an attorney dishonest enough to overstate their likelihood of success. The latter two possibilities generally lead to disaster and, I would suggest, the first possibility is highly unlike. Often the best advice a prospective client can receive is: DON’T.
Yet there are times when a person needs an attorney even if the situation is discouraging. Perhaps the prospective client is a Plaintiff who has already filed a lawsuit but isn’t seeing successful results. Or that person might be a Defendant and the case against him or her is overwhelming. Finding an attorney who “believes” in that case may not lead to beneficial results. Someone seeking an attorney to defend a custody modification case in which that party abandoned the child years ago, and spent the intervening time in a dissolute lifestyle, is likely best counseled by being advised into face-saving methods of ending the case quickly and inexpensively.
Some of my best counsel to Plaintiffs seeking to change lawyers is that they need to trim goals or find a way out. Some of my best counsel to Defendants is “settle.” I recall one second opinion I offered a few years ago on a custody modification case in which I suggested this Plaintiff agree to dismiss his action with some small payment of attorneys fees to Defendant’s counsel. That advice was rejected and I was later asked to handle a petition for reconsideration after that client pursued the case to trial, lost, ended up paying his attorney even more fees, and was ordered to pay opposing counsel over $50,000 in fees.
Not every prospective client will seek our advice with a strong claim or a strong defense. Rather, some folks need a family law attorney because their claim isn’t strong or their defense is weak. In court, and in dealing with opposing counsel, our clients have the right to expect zealous representation. But in our role as “counselor at law” some of the best advice we can provide is letting prospective clients know we don’t believe in their case and why.
The culture’s expectation that attorneys should “believe” in their clients’ cases is misguided. We shouldn’t encourage clients to hire us upon this mistaken assumption.