Lawyers Victimizing Clients: Two Models
I was visiting with a friend of mine recently. He regaled me with a story of a lawsuit he had brought against some entity that had screwed up a service it was providing. He lamented how he had been unable to get the case settled. He told me that the lawyer defending the case had convinced his client the case was win-able and the adversary was now fighting to the death, when settling would have cost only marginally more than the legal fees the adversary was now paying.
What was unsaid in this conversation is what forms the basis of this post. We both knew the adversary's lawyer. He was a very good lawyer, but he was one of those lawyers who is never wrong and is going to win every case, or at least that's what he thinks. And he somehow convinces clients that whatever technicality he has seized on, or whatever obtuse theory he has concocted, is THE winning play. And, sure, sometimes he wins, but more often not, and more often still the client ends up settling after paying huge attorney fees.
There is a place for this kind of lawyering, but it should be rare. Unfortunately, it happens way too often. Lawyers who lack real world business judgment or who can't smell what they're shoveling convince others to believe them. They are, after all, highly accomplished advocates who are preaching to the choir, their client. Their client obviously wants to believe that they've done no wrong and that winning should be a walk in the garden. Too often, it is far too late when the client realizes the garden was a mirage and the walk is through a desert.
There is a second model that frequently proves to be the client's undoing. I refer to these as the "follow-the-script, paint-by-numbers, what-me-think?" lawyer. The lawyer whose only concern is that he or she can point to having done each thing that somebody once said should be done in that kind of case. I had an example of one such lawyer for a client for which I serve as National Counsel, having to spend hours and hours dealing with a simple choice of law issue. Even after I decided the course, hours were spent because what I had decided was outside the lines even if destined to shorten our involvement in the case. Doing something a certain way because that's the way its been done before is a damn poor excuse for lawyering, but that is precisely what clients often get. And because they don't have time to micromanage a case and because the outside lawyer is a fine advocate, the client frequently doesn't learn what it deserved but missed.
I wish I had some good advice on how to spot the good lawyers from the pretenders in these situations, but I don't. Anybody care to weigh in on this?
