Roundtable
Discussion - Part II
Case Evaluation
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(Front)
Kelly Centofanti, Stadler & Centofanti, LLC; Mark Silverman,
Legal Action of Wisconsin, Inc.; Charles Barr, Croen &
Barr, LLP; (Back) Jeffrey Hynes, Jeffrey S. Hynes & Associates,
S.C.; Jay Urban, Urban Taylor & Stawski, Ltd.; Merrick
Domnitz, Domnitz, Mawicke & Goisman, S.C.
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One
of the most important aspects of practicing law is the effective
evaluation of cases. Taking on the wrong cases or clients can
be disasterous to a firm’s finances and its reputation. Wisconsin
Law Journal editor Tony Anderson sat down with a panel of veteran
lawyers to learn how they approach case evaluation and to find
out some of the pitfalls they face.
Wisconsin
Law Journal: During the first half of our discussion,
Jeff Hynes talked about using a client survey to help with screening.
How do others approaching that process?
Jay
Urban: Well, I share Jeff's concern, too. It's a battle that
we'll all have until we retire. How much time do you spend looking
for new business versus how much time do you spend promoting your
old business or making sure that your old business is as successful
as it should be? ...
We
do similar things to what Jeff does. Rather than hire quantity
of staff, we really try to hire quality staff. As the lawyer though,
especially if your name is on the door, you have a little more
leeway on how quickly you can get off the phone with somebody
if you realize the case is going south. So I'm constantly in battle
with a staff person screening a case might spend 20 minutes doing
it. Sometimes I can get in and out in five.
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"Evaluating
cases begins on the first day that you meet the client and
doesn't end until the case is over."
Merrick
Domnitz,
Domnitz, Mawicke & Goisman, S.C.
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If
it's just a general referral to the firm or even if I'm unavailable
and it is a personal referral, a very competent staff person ...
will take the call and be able to use different forms that we
have to pigeonhole the case into a particular type.
The
staff person communicates to the potential client, what we're
looking for. Then we force them to send us an e-mail. That does
two things. Number one, when they communicate orally, they'll
spend all sorts of time. They're not worried about condensing
it, but if they have to sit down and write it … then they're
going to think, to put the best information in there.
Number
two, I can screen that a hundred times faster. I can often do
it after my family goes to bed. So I'll take those e-mails home
for the day. I promise to get back to everybody the next day.
Kelly Centofanti: That makes me feel lucky to get most
of my cases from other lawyers because a lot of that screening
is done. So when a lawyer calls me with a question about a case,
I always return that call. Or if a lawyer sends me someone, I
always talk to that person myself.
What
happens from there as far as the blowout letter, that's handled
through a paralegal. Sometimes the paralegal will screen cold
calls that aren't the product of a lawyer referral. Then we have
a form, and I can sort through them at my leisure.
Charles
Barr: I think it's much more difficult to screen cases when
you have a rather unstructured practice. By "unstructured,"
I mean a practice with a lot of different kinds of cases rather
than all employment cases or all plaintiff's personal injury cases
or that sort of thing. It's harder to have a non-lawyer staff
person participate in the screening. It's more difficult to come
up with a set of criteria or boxes to check which you can then
review and say automatically you're going to take or not take
the case.
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"I
don't think you could take a case if you don't think the
client is credible."
Kelly
Centofanti,
Stadler & Centofanti, LLC
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There's
also the issue of access to an attorney. Obviously, I can't talk
to everybody who calls, but I try to talk to as many of them as
I can, if only for a few minutes. I think people feel a lot better
if they have talked to an attorney than if they've talked to a
person that they know is a staff person.
There's the public perception of the legal profession to think
about as well. I'd like to think that we all have an obligation
to make ourselves somewhat accessible to potential clients rather
than closing ourselves off completely to 98 percent of those.
You obviously can't talk to everybody who calls.
WLJ: What role does your personal
assessment of a client's credibility play when looking at whether
to take a case?
Centofanti: Huge.
Jeffrey Hynes: Yes.
Centofanti: I don't think you could take a case if you
don't think the client is credible.
Merrick
Domnitz: I think in every post-verdict jury study that you'll
see — speaking with regard to personal injury trials —
that the number one factor in the jury's decision is what they
thought of the plaintiff.
Centofanti: It's a human system.
Domnitz: The jury has to like the plaintiff. The jury has
to believe the plaintiff. The jury has to perceive that the plaintiff
is seeking just compensation and not overreaching in areas. I
constantly have clients waive certain components of their claim
that will look to the jury to be overreaching. I have a client
that I'm handling a case for right now who's got a legitimate
loss of earning capacity claim from a very bad back injury in
a bad automobile accident case. I can't prove it in a court of
law.
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"If
you want to reduce the surprise factor, don't commit to
representation without having a chance to contact the other
side."
Mark
Silverman,
Legal Action of Wisconsin, Inc.
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I
told him because he was a commissioned salesperson, and his accident
happened just as the economy took the big downswing, there were
simply too many variables at play there for me to likely be able
to prove to the satisfaction of the jury. And I told him that
I thought that we would impair the credibility of the rest of
what was otherwise a very good claim...
I've had clients in catastrophic injury cases where we're going
to run into the cap anyways. I think one very effective way for
a plaintiff's lawyer to argue it is to go up there and to say,
my clients, the parents, have a right to the loss of services
of a minor child. My clients have asked me to tell you that they
want you to put zero in there. They don't want compensation for
what their child can't do for them anymore. They want your attention
directed to the plaintiff.
Your damages are capped anyway and you give away something that
really isn't giving away anything in order to enhance your credibility.
There's nothing that's more important than what the people in
the jury box think about the veracity, and the worthiness of the
people who are asking them to put amounts of money into that verdict.
It's absolutely the controlling factor.
Centofanti: I had a death case once where the kids lost
their mom. And there was a husband, a widower. He was really not
a good plaintiff. The kids were pretty good plaintiffs. If the
jury thought they would have to give Dad money or Dad was going
to be involved in those kids' money, there would have been no
way the case would have been won. So we got Dad to waive his claim...
Now we represent the kids and the jury won't get to meet Dad.
Hynes: Same thing holds true in the employment discrimination
realm and I'm sure in other areas of civil litigation. The same
client who comes in angry, vindictive, sour grapes toward their
employer is going to come across that way to an administrative
agency investigator, as well as to a judge, as well as to a jury.
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"One
of the very first questions that I always ask prospective
clients is, what are your goals; what do you hope to accomplish.
That's probably the most important thing."
Jay
Urban,
Urban Taylor & Stawski, Ltd.
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Other
indicators are clients who start the conversation by telling you
they have a great case before you've had a chance to evaluate
it, clients who tell you what their case is worth before you've
had a chance to make that determination.
Some of the other panelists have consistently made a good point.
We all break the rules that we're trying to establish at this
table. I think there's an uneasiness with us over that. While
I say don't take a case unless you're willing to try it, I could
identify several cases I've taken that I probably won't try —
cases that are just service-oriented, severance packages, et cetera.
So we all break these rules. But I think these are tenets that
are worth pursuing.
Clients who are driven by greed, don't have that fire in their
belly that's necessary, at least in my realm of practice. When
I left a defense firm, I decided I was going to do this with passion
and fire in my belly. And I insist that my clients have that passion
for justice, for making a difference in the workplace, not just
for obtaining money or revenge.
My experience is clients who are not seeking revenge end up doing
much better because their employers view them as reasonable. And
the employers are not able to demonize my client. ... If the employer
demonizes my client, the order comes down to corporation counsel
and to outside counsel, millions for defense, not a penny for
tribute. So it becomes very difficult to settle a case with a
client who is carrying baggage into the office...
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"My experience is clients who are not seeking revenge end
up doing much better because their employers view them as
reasonable."
Jeffrey
Hynes,
Jeffrey S. Hynes & Associates, S.C.
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Urban: We call this part of the exercise "goal setting."
One of the very first questions that I always ask prospective
clients is, what are your goals; what do you hope to accomplish.
That's probably the most important thing. And that's where you
get answers to the questions, is it the money; is it this nebulous
claim for lost earnings.
Ric's exactly right. I think I learned one other thing from Ric
or somebody else and that is giving up loss of consortium claim
you advance the claim for settlement purposes...
When you have that goal-setting expectation, that allows you to
have this cross-examination of your own client, so you don't have
these hiccups that come up later that give us all indigestion.
Domnitz: I've tried a lot of cases in 27 years where my
client's view of liability was much stronger and much more confident
than mine was. But I've never gone into a court of law on behalf
of a client who thought that their case was worth substantially
more than I thought it was worth. I won't try a case for a person
if they want me to get up and ask for an amount of money that
I can't believe in...
Centofanti:
I had a funny thing happen recently. I had this little old lady
who was run over by a cement truck. She wasn't hurt horribly bad.
It's a PI, soft tissue kind of case. But they had to cut her out
of the car. Well, she's really kind of crotchety. And apparently
from all the lay witnesses I've gathered up, she always has been.
So I was talking to the adjuster. And I said the jury is really
going to like this lady; she's independent, retired from Nestle's
after so many years; and she's a sweet little... And he says,
before you go too far out on a limb, I think I should tell you
that I met her. And the jury is not going to buy that nice, little
old lady thing.
That one may be destined to settle.
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"I'd like to think that we all have an obligation to make
ourselves somewhat accessible to potential clients rather
than closing ourselves off completely to 98 percent of those."
Charles
Barr Croen & Barr, LLP.
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Hynes: Another way to weed out bad cases and sort of flesh
out whether the client is carrying baggage is to carry your burdens
of proof and defenses on your sleeve. I routinely confront my
clients in a first meeting with the defense's arguments against
their position. And I do so in a rather "ruthless manner."
I tell them ahead of time that I'm going to be playing devil's
advocate. Because the way you win employment cases is not to toot
your own horn about your good facts. I wouldn't have you in here
if I didn't feel you had good facts.
In doing so, I think you test not only your client's knowledge
of their case, but also their own psychology, their own disposition.
... If you face somebody who is confronting you or asking you
if you're on their side 15 times during that conversation, I think
it does raise issues which are both ethical as well as case evaluation
issues. Do you trust your client and does your client trust you?
You have a choice as a lawyer to not take a case for a client
who you don't like and don't trust. I really have not had a client
get angry at me if I say in a first meeting, I don't think we're
going to get along; and I think you may have a good fact pattern
here that another lawyer may find attractive and may find a better
relationship with you.
Domnitz: Something that occurred to me while Jeff was giving
that answer is I think it's important who the lawyer in the office
is that evaluates the claim on the initial intake. You have to
have a lawyer who is experienced in the area that the client's
claim lies in, or else that person isn't going to know when the
knock-out facts appear. They may not recognize them, or if some
really good potentially outcome-determinative fact is revealed,
it may get by them.
I reevaluate the claims in our office even after they're in the
office. When it's time to send the case to trial, you need to
sit down and do another evaluation of the case. We have roundtable
litigation meetings where we sit down and give every lawyer an
opportunity to get input from every other lawyer in the firm about
the case and the potential problem areas and how to deal with
this issue or what should be done next.
I'm
always careful to weigh not only what is being said but by whom
it's being said in terms of experience. My way of evaluating cases
is to kind of close my eyes and picture myself in the courtroom
and remember when I last tried a case like this. I remember what
seemed to fly and what didn't seem to fly. I'm about to give my
advertising slogan, that there's no substitute for experience,
but I really do believe that's true...
Centofanti: You can't have blinders on hiding the bad facts
or getting vested in the case. Because you could really like your
clients and as the case goes on, a knock-out fact could show up
where you realize you can't handle it anymore. I get a lot of
calls from lawyers who are unwilling to face the fact that their
case has gone down the tubes before their eyes, and they like
the client and don't want it to happen. But no one can fix that.
Domnitz: There's nothing that clients hate more than having
you tell them that there's something outcome-determinatively bad
about their case that's been on the table since the first day
you met them two years before. They hate that...
And Kelly said it. Now you've spent your time and your money and
things. You might as well come face to face with it early and
get rid of it. There's an old saying, like in a holding poker
game, you can't lose what you don't put in the middle of the table.
You can't waste your time and waste your money if you don't throw
them in in the first place. You're much better off getting rid
of 10 cases even if eight of them are bad and two of them are
good than you are handling 10 that are bad. You're going to make
some money on a couple of them. But the other eight are going
to eat you alive.
WLJ: We're nearing the end of our time, so let's go around
the room quickly and see if you have any final thoughts on things
that we haven't touched on that are important for lawyers to consider
when they approach case evaluation.
Centofanti: Well, one big thing, I think, that we've hinted
at but not discussed is knock-out factors, like statute of limitations,
insurance policy limits, state or municipality claims that have
notice dates that are gone, things like that.
Mark
Silverman: Conflicts of interest.
Centofanti: Conflicts of interest. In medical malpractice,
there are a lot of restrictions on who can bring a claim and not
bring a claim. So many times there just isn't anyone to bring
the claim. And if people aren't skilled in the area that they're
trying to practice in, they should consult someone. ... There
are a lot of traps for the unwary.
Barr: When you asked what we look for in a client, we talked
about clients who will impress a jury favorably or a fact finder
or agency favorably.
I think we have to go beyond that though. Because there are clients
who have wonderful attitudes, wonderful objectives, and who are
nonetheless lacking the stomach for the process, for want of a
better word. They won't hold up well in the courtroom, despite
their best intentions, despite that they're wonderful people,
despite that everybody would like them. They won't be able to
take the pressure of settlement negotiations or even the pressure
of mediation. They will just want to cut and run at the worst
moment...
Another point that occurred to me is that you can have a client
come in with a really wrong-headed idea about what the case is
about and what the remedy is and how it should be handled. And
you still might be able to help that client if the client is willing
to listen.
Domnitz: I think as far as a summary statement, I would
say that being honest with yourself about your evaluation of a
case as early as possible is most important. I also think it's
important to remain honest and open-minded about the potential
that a case either has or begins to show during the discovery
progresses.
The earliest time that you know that you're not going to be able
to be of service to the client is the time to get rid of the case.
On the other hand, don't be so negative about cases that you don't
give imagination, creativity and hard work an opportunity to produce
a good result for the client.
For what seems to be a pretty straightforward and easy part of
the practice, evaluating cases turns out to be a sort of complex
and ongoing process that needs to be in the fore of the lawyer's
mind. ... Evaluating cases begins on the first day that you meet
the client and doesn't end until the case is over.
Hynes: My parting words would simply be along the lines
of Ric's. Go with your gut with respect to justice and recognize
that our primary goal is to service the client. But also recognize
that servicing the client with a bad case and taking a bad case
through the system does nothing but punish the client who you're
trying to serve. Have the courage to say no.
That's the most difficult thing I've found in my career is to
say no to bad cases and build your reputation on taking good cases.
Don't be an enabler for the bad case. Don't be an enabler for
the case that's been to four lawyers and now you're going to be
the one who punishes yourself, punishes your client but also punishes
the cause that you're fighting for. ... Bad cases make bad law.
Urban: I think that my practice to some extent diverges
from the pickiness of case selection. I'm a firm believer in being
picky and saying no and all these things. But I just think that
finding the heart of the case earlier and being able to see the
forest through the trees, those things are important. That doesn't
necessarily mean it's a kick-out factor.
That might mean that you approach the case in a novel way. Or
this might sound like heresy if you hold yourself out to be a
trial lawyer, but maybe it's a case where the client still needs
help. We're in the business of helping people. If everybody in
town just kicks them out, we're not doing anything for our reputation.
The clients probably could use a hand on some aspect of the case.
Maybe they don't care about making precedent, and maybe they don't
care about your reputation. What they care about is how they are
going to extinguish this Medicare lien and get on with their lives.
So if you can find the heart of your case early and you can explore
the big picture and you can explore the motivations or the goals
that the client might have for taking the case...
Obviously, you can't do that in every case. You have to have your
bigger cases where you're focusing your efforts. Otherwise, you're
not going to be profitable. But I think there are a lot of other
... reasons to be in a case than just considering whether it's
a good case, or it's profitable. Frankly, sometimes in a contingency
fee practice you're overpaid. Then more often than not you're
underpaid. It's better to take sort of a holistic view.
Silverman: We had a discussion recently at Legal Action
similar to what you were just talking about with pushing the law,
taking a case that advances the law, hopefully not to the detriment
of your client, but looking at cases not just in terms of is it
an easy win or is it a loser.
When
Tony announced this panel, one of the questions he asked us to
consider was what are some of the classic missteps to avoid? I
came up with three that I've run into.
One
is taking a case with insufficient time to evaluate or investigate.
That can happen often with eviction cases. You've only got five
days often from the time of service of the summons and complaint
to the first court date. Often a client will come to our office,
and their court date is the same day or the next day.
If you want to reduce the surprise factor, don't just commit to
representation without having a chance to contact the other side.
Sometimes if there's a court date that same day and I think that
it's worth following up on, I will only commit to investigating
in the courtroom, talking to the landlord or the landlord's attorney,
and not committing to an eviction defense until I have all the
facts.
Another misstep is believing everything your client says. I notice
that some of the younger attorneys or paralegals, when they come
to me to evaluate the case, they're convinced that it's an excellent
case because that's what the client says. When their client says
what happened, that's got to be the truth. I always, if it's a
fact-based eviction, contact the landlord or landlord's attorney
to get their version of the story.
Finally, evaluating over the phone is dangerous if there are documents
that are important to the case. A termination notice or whether
or not a document is a lease may make or break a case. And I need
to see those for myself.
In conclusion, I'd say that I agree that the primary goal for
me in representing the client is what does that client want? That's
something that can be determined right away in the evaluation.
There are times when I have actually neglected to determine that
right off the bat and I will be surprised when I come to court.
The client will tell me, I don't want to stay here; I want to
move out. And I should have asked that right away. What is your
goal?
Domnitz: I just want to say one thing in follow-up to what
Jay said. You know, maybe this is because I've been at this too
long and I've soured on this one. But I don't perceive myself,
as a plaintiff's personal injury lawyer, as being in the business
of helping people. My job is to help people obtain just and reasonable
compensation if they've been injured at the hands of another person
according to the existing state of the law or a logical extension
of the law.
If
I perceive myself as being in the business of helping people,
I'm going to get involved in a whole lot of cases that I shouldn't
be involved in. I'm not saying that I'm going to necessarily put
profitability ahead of humanity. But the truth of the matter is
that lawyers run businesses and there are social service agencies
that are in the business of helping people.
I will help somebody get to the right place where they can get
help for their problem. I will make referrals and things like
that. But I think my job, vis-a-vis my obligation to my partners,
vis-a-vis my obligation to my profession, and my obligation to
my family, is to use whatever tools I have to help tortiously
injured people get the compensation that the law either does provide
or should provide for that situation.
I send people away all the time who have legitimate problems that
are simply outside the field that I practice in. Because I'll
get them to somebody whose job it is, or whose desire it is to
help them in those situations. ... I'm not really taking umbrage
at what Jay said because I think it's noble. The only point I'm
trying to make is I think a very important part of evaluating
who you're going to try to help or what cases you're going to
take on is to have a very good sense of who you are and where
you fit within the system and to do your job as well as you can
but not try to take on the problems of the world...
I think that Jeff made a very valid point early on here. There's
a huge difference between voluntary pro bono work and work that
you take on trying to make a profit that ends up being pro bono.
Click
here for Part I.
Tony
Anderson can be reached by email.
