McElhaney on Litigation

Spotting the Losers

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McElhaney at His Best

The ABA Journal is occasionally reprinting some of James McElhaney’s most popular columns from past years. This article originally appeared in the Journal’s November 2001 issue under the headling “Staying Away From the Dogs.”

Bill Brickman–who is a very solid lawyer–walked over to the corner table in the Brief Bag, tired and disheveled. He dropped himself in a chair and looked around. “I’m in trouble,” he said. “Bad trouble. I’m in way over my head.”

“What’s wrong?” said Mike Pirelli. “You been indicted?”

“Nothing that simple,” said Bill. “My practice is out of control. I stayed up all night evaluating every active file in my office, taking notes on what needed to be done. At about 5 o’clock this morning I came to a terrible realization. A year ago, I left Randolph & Wheeler–a perfectly fine law firm–to try to get some control over my professional life. To march to my own drummer. Now here I am, a solo practitioner, and I’m not even in charge of my own office. So every day I just get mired deeper in the pit.”

“What’s the real problem?” said Beth Golden. “Are you overwhelmed with too many cases, or are you stuck doing stuff you just can’t stand?”

“Kind of a combination of the two,” said Bill. “While I’ve got about two dozen cases that I feel on top of … ”

“Congratulations,” said Myra Hebert. “I wish I were on top of any of my cases.”

“Anyway,” said Bill, “I’ve got another dozen that make me feel seriously inadequate. Some because I’m too far behind, or because I don’t really have a grasp of the facts or the law.

“But others are genuine dogs. Losers. Cases I never should have taken. They sit in piles scattered throughout the office, starting to compost like old piles of leaves. Except for what absolutely has to be done, I neglect them–and I know it. The clients call, wanting to know what’s happening in their cases. I’ve even begun waking up in the middle of the night, worrying about them. I’ve got piles of cases in my office that are absolutely flea-ridden, mangy dogs, and I need to figure out how to get rid of them.”

“Don’t worry,” said Flash Magruder. “It’s in the great tradition of the practice of law. All the lawyers I know have albatross files–cases that weigh them down.”

“What Bill needs is a strategy for how to deal with them,” said Angus.

“Like they have at Mason & LeClerq,” said Margaret Anderson. “My first day in the office, I had a pile of files on my desk a foot-and-a-half tall–I measured it. Every case was a dog. And every one had been on at least one other lawyer’s desk before it got to mine. Some had been kicking around the office for years. I was able to deal with a couple of them. The rest I passed on to someone else a few months later. That’s how you handle it–just dump your problem cases on the next lawyer to join the firm.”

“Somehow I don’t think that’s going to work for a solo practitioner like me,” said Bill.

Resorting To Legal Triage

“What you need to do,” Angus said, “is a serious triage.”

“Like the battlefield medics?” said Bill.

“Right,” Angus said. “They would divide the wounded into three basic groups. The first ones were beyond hope. All the medics could do was give them some morphine and try to make them comfortable. Second were the walking wounded, the ones who could wait for medical attention. And then there were the genuine emergency cases–the gravely wounded soldiers who might be saved if they got immediate medical attention.

“You’ve got to do something like that with the cases you have,” said Angus. “You’re the only doctor in your office, and you don’t have unlimited time to give to every case. But when you conduct your legal triage, the groups are a little different.

“First are the genuine losers. They’re the ones that–after some discovery and legal research–you realize don’t have the facts or the law that would let them win. But that doesn’t mean you throw them out in a heap next to your door. Call the client into your office and explain the situation, treating the client with the respect he or she deserves–whether or not you charge for the time you spent on the matter.

“And be careful how you send people away. Tell them they’re welcome to get a second opinion, especially if it’s a doubtful area of the law or if they have a technically valid claim that you feel doesn’t have much economic value.

“Otherwise, some other lawyer may figure a way to make the case pay after the statute of limitations has run by making you the defendant in a malpractice suit. So it’s a good idea to write a letter explaining that your client is welcome to a second opinion and suggesting prompt action so the statute of limitations won’t run out first.”

Carefully Sift Cases From the Start

“The second group is made up of misplaced cases. When the little corporate case came into the office, you were sure this was an area you would enjoy. Only you missed signing up for that great seminar on close corporation battles. And when that real estate acquisition dispute walked in the door, it looked like the perfect opportunity to expand your practice in that direction. But now that you’re so busy learning about defending age discrimination cases, you don’t have the time or inclination for it.

“Dogs are in the eyes of the beholder,” said Angus. “These cases would be fine in the hands of the right lawyers, but not in your office. So your job is to help this kind of case find a good home and then talk to the client about you dropping out.”

“Wait,” Bill said. “I’ve got a question: If you send a case like this to someone else, do you ask for a referral fee?”

“Some do,” said Angus, “but not me. I’m a lawyer, not a broker. I only take money for work I’ve actually done that benefits the client. That does not include finding another lawyer. Period.”

“Fool,” said Myra Hebert under her breath, which made Beth Golden give Myra a look and toss her head with a sniff.

“The third group is the troubled or difficult cases that present special problems but may well be worth your effort,” Angus said. “These are the ones that might profit from a creative approach to proving some key facts or new way–for you, at least–to argue the case or make the evidence come alive. After all, you took the case because you thought you could do something with it. Now is the time to brainstorm it looking for some fresh ideas.”

“That’s impressive,” said Bill. “I almost feel like going back to the office right now.”

“Wait,” Angus said. “There’s more to albatross files than just conducting a triage on the cases you already have.”

“Prevention is still more valuable than cure,” said Angus. “Start picking your cases more carefully. Understand that every time you commit yourself to take on a case, you are evaluating the facts, the law, the client and yourself.

“Lots of cases depend on facts you may not be able to prove. So there are times when you should make it clear from the beginning that whether you will stick with a case may be contingent on what you learn in trial preparation and discovery.

“The same is true when the case depends on what happens on the cutting–or sometimes raggedy–edge of the law. When the appellate court suddenly changes the rules, you need to re-evaluate the situation.

“Then there’s the client and you. Lots of clients are difficult people–which is how they got involved in disputes like the ones that brought them to see you. Can you stand to work with this person in a demanding relationship that may last for years and requires trust, confidence and patience?

“Finally, don’t carry any of these ideas to excess. There are some law firms that have the reputation of taking only ‘perfect’ cases with wonderful clients who never act difficult and who always make a good impression with the judge and jury. Some of these firms never take on a hard case or represent an annoying client for any reason. They are lawyers who never know the satisfaction of having made a contribution to the development of the law, or never feel the pride of having given some of their time to make the world a little more fair.

“Not every deserving case is a popular cause or earns a big fee,” said Angus. “There are times when you need to take the albatross that walks in your office just because it’s the right thing to do.”

James W. McElhaney is the Baker and Hostetler Distinguished Scholar in Trial Practice at Case Western Reserve University School of Law in Cleveland and the Joseph C. Hutcheson Distinguished Lecturer in Trial Advocacy at South Texas College of Law in Houston. He is a senior editor and columnist for Litigation, the journal of the ABA Section of Litigation.

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