In-House Counsel

Why Lawyers Mislead Clients

Optimists, pessimists, and fearful lawyers: None of those lawyers are serving their clients well. Or even ethically.

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The first kind of lawyer is an optimist; he just wants to get hired.  “Your case is great,” he tells the client.  “You can’t lose.  I could win this case without breaking a sweat!  Hire me, and let me do as I promise.”

The lawyer figures that no potential client wants to hear that it’s going to lose a case.  So he tells the potential client that it will win.  That’s just good salesmanship.

The second kind of lawyer is a pessimist; he’s hedging against bad results.  Although the client’s case is pretty strong, it’s always possible to lose at trial.  And, if the jury goes against you, you don’t want to be blamed for having given overly optimistic advice.  The client has a 60 percent chance of winning, so the lawyer opines that the client might win the case 40 percent of the time.  “Shoot!  I told you that you were more likely to lose than win!  Don’t blame me for a loss.”  And the likely damages are a half million bucks.  So the lawyer opines that the client could easily lose three-quarters of a million, or maybe a million on a bad day.  The lawyer’s protected if things really go south.

Both of these lawyers — optimist and pessimist — cripple the client’s ability to intelligently assess its case.  If the client believes it will win when it’s likely to lose, the client assigns too little value to the case.  The client should pay more to settle.

If the client believes it will lose (or lose a lot) when it’s likely to win (or lose little), the client assigns too much value to the case.  The client pays too much to settle, because outside counsel has misinformed it.

Neither optimist nor pessimist serves his client well.  But both of those types of lawyers exist.

There’s a third type of lawyer, too — a more changeable one.  This lawyer is optimistic at the outset of the case and becomes pessimistic as trial approaches.  We’ll call this the fearful lawyer.

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When the fearful lawyer first reads the complaint and interviews witnesses, he’s very optimistic:  “We have a lot of good defenses.  I like this case.”  But then you lose summary judgment and trial approaches.  Although the facts haven’t changed, and thus there’s no obvious reason for counsel’s assessment of the case to have changed, somehow the case has gotten harder:  “I just realized that the other side has demanded a jury in this case!  Juries are terribly unpredictable.  And talk about inflated demands!  The plaintiff’s demand has more zeroes than attacked Pearl Harbor.  It’s PlayStation numbers.  We could really get killed.  If I were you, I’d pay just about anything to avoid facing a jury.”

None of those lawyers are serving their clients well.  Or even ethically.

When you’re asked to assess a case, you should assess it straight down the middle, not affected by your desire to be retained, your desire to avoid looking bad after an unfavorable verdict, or your fear of facing a jury.  Of course when you value a case you won’t always be right; reasonable people can disagree on the value of a case, and the whole idea of judgment calls is that they involve judgment.

But that judgment should not be influenced by factors extraneous to the case, such as a lawyer’s self-interest or fears.

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Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

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