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Lawyers provide a valuable service to their clients when they aggressively obtain information that enables them to evaluate claims for early resolution. This aggressive pursuit of information may result in higher upfront case expenses, but it frequently enables the client to close out his file more quickly. For a client to give a lawyer free rein to delve as deeply as needed into a plaintiff’s past is an exercise in trust. The lawyer can validate the trust by tempering his aggression and pursuing only that information likely to yield material results.

But not every client will be on board with this approach, so before blazing trails into a plaintiff’s prior medical and employment history, you need to make sure you and your client are on the same page. To make my point, I’m going to tell you the tale of two cases.

THE CLIENT INTERESTED IN AGGRESSIVELY PURSUING INFORMATION

I represented a truck driver who had a drug problem. Well, to be fair, it wasn’t a problem for him—he consumed as much as he wanted whenever he wanted. It only became a problem once he got in a wreck. Then it was his problem and the plaintiff’s problem and the trucking company’s problem—and eventually my problem.

The liability for the accident was always questionable, and to this day, I couldn’t tell you who was at fault. The plaintiff wasn’t really hurt either. Even her doctor would eventually testify that the treatment she received once a month after the accident wasn’t any different than she would have been receiving had the accident never occurred. Were it not for the giant albatross around our collective necks, in the form of a post-accident drug screen that was positive for methamphetamine, we would have had a pretty defensible case.

We were working for a client who was willing to front the costs for finding the skeletons in the plaintiff’s closet. It turns out, it was a veritable graveyard. The plaintiff had bounced from one doctor to another, then from one pain management clinic to the next. She had numerous warnings in her medical file about getting her medications filled at multiple pharmacies or making alterations to the number of pills she was supposed to receive. Then we found our golden ticket: Five weeks before our accident, she had been kicked out of pain management for selling her medications. Of course, in her deposition, she denied having done any of these things, but that was hardly the point.

We eventually settled the case for pennies on the dollar. Nobody wanted his client to get in front of a jury. But imagine if my client had been stingy and refused to allow us to dig into the past. Whatever the additional costs we incurred in the way of subpoenas and reviewing medical records, it paid huge dividends by balancing the scales for a reasonable settlement.

THE CLIENT WHO DIDN’T WANT TO INCUR LITIGATION COSTS

Not every client sees things through quite the same lens. In another case, I was defending a client in a car wreck case. Just your standard fare. Nothing particularly exciting. We filed an answer and issued discovery requests right away. In his responses, the plaintiff stated that at the time of the accident, he had been a recreational drug user. Well, that was kind of exciting. But I was working for a client who would not pay for attorneys to review medical records.

I had a dilemma. Either I could go look at the ER records for free, knowing that this particular hospital where the plaintiff was taken after the accident usually performed drug screens on people involved in accidents. Or I could wait for my paralegal to review the records and get back to me with a summary, at which point I’d still be left hoping she had scrutinized everything as closely as I intended to. Since I’m sworn to zealously advocate for my client (even when they don’t want to pay me for the work), I grabbed the ER records and began rummaging through them. No drug screen. That was too bad. But tucked away in the stack of records was a priceless one-line nurse’s note: The patient states that he abuses pain pills and nerve pills. Whoa!

Guess what piece of information gave the plaintiff fits at his deposition. That case ended up settling more cheaply than it otherwise would have as well. But imagine a scenario where I hadn’t sussed out that nurse’s note. My client would have overpaid in settlement or at trial for the small price of whatever time it took me to review some records.

The value is in the long-view perspective: The attorney-client relationship is complex and requires a measure of trust. It’s a fragile thing. The client gets an itemized monthly bill from the attorney but doesn’t always see the work product to know whether the reward justifies the costs. There are plenty of attorneys who have been poor stewards of their clients’ money. Consequently, they have caused their clients, and other people’s clients, to give pause when asked for some leeway to undertake some costs.

But if a lawyer can work responsibly and efficiently, he can reward his client by developing important information material to the case—information that might otherwise have gone undiscovered. Aggressively pursuing information pays dividends (even though it might result in increased upfront litigation costs) because it enables the lawyer to arrive at stronger evaluations and achieve better settlements or verdicts.

Jeremy W. Richter is an associate with Webster Henry in Birmingham, Alabama, and the author of an eponymous law blog.

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