It’s a dogma: the client decides whether to plead, whether to go to trial, whether to accept a compromise or settle. Burned into the brain of every lawyer. It’s the client’s case, after all.
In a profession that rarely commits itself to bright line rules, this is a bright line rule. Which is typical, because whereas in theory there should be no problem or confusion about following it or not following it, in practice it is essentially a meaningless directive. In short, one of the few bright line rules of practicing law in a litigation setting is bullshit, more or less. The situation is way too complicated for drawing bright lines.
In criminal cases you can sometimes represent what you might call experienced litigants. They know the game, they know the system, and they are quite capable of rational decision making about it all. But then there are other clients – like innocent ones – that have no idea what is happening or why. To them it’s just Kafka’s nightmare in the flesh. The risk reward analysis all by itself is just too much to take in. These clients require a lot of management, and the “client makes the decision” mantra is such a poor fit it’s foolish to apply it at all, to say nothing of elevating it to a dogma of bright line drawing.
One of my early jury trials involved a personal injury. I represented the plaintiff, of course. An individual. Real human being.
As is usually the case where I come from in these situations, the defendant – who is really an insurance company (i.e., non human being) as it is in nearly every personal injury case – had never made an acceptable offer of compromise prior to the trial. After we had picked the jury and I had done a creditable job presenting the plaintiff’s case and had “rested”, the insurance company increased it’s offer of settlement by 50%.
I dutifully presented this offer to the client, who was of course right there in the courtroom during this break in the action – that is, after we had rested our case and before the defense was going to put on its evidence.
The response? The client, already in a daze from the many things that had gone on at the trial, and which are of course completely unfamiliar and even mysterious to a layman, but in which as parties to the litigation they are nevertheless keenly interested, looked at me as if my question had been ridiculous and unfair, and said: “What do I do?”
So I said we should turn it down. And that’s what we did.
As it happened we went to verdict and the jury awarded 4-5 times what had been offered. But of course I didn’t know they were going to do that when I asked the client what they wanted to do and the client hit that ball right back to me. And one thing that was running through my mind as I prepared to make my play on the swiftly returned ball is: what if we turn it down and the jury “no-causes” us, which is a real danger in any personal injury case where I come from, meaning that the verdict is that the plaintiff has “no cause for action” and is awarded zero, the big goose egg. No soup for you.
Success has many fathers but failure is an orphan, it is said. Unpack that a little. Many of the people involved in some endeavor or other have the option of claiming a prominent role, or a limited one. Or perhaps even no role. It may not really be clear when you’re right in the middle of things. So the “smart” play – and I mean “smart” here in the sense that most Ivy Leaguers mean it – is not to commit wholeheartedly until the results are known. Then, if it’s a failure you had no role or only a limited one. If it’s a success you were right there all along, a key player.
Unfortunately, attorneys representing clients can’t be smart like that.
Facing the unknown and being responsible for the outcome of the encounter with it is a very difficult and often very lonely thing. Second guessing after the fact, though – when everything that was unknown before is now known – is really easy. It is also very outcome dependent: no one second guesses if the operation has been a success.
In another personal injury case I had advised the client that our target was $600,000. We turned down an eve-of-trial offer of $500,000.
For my part, I had put so much into the case that I didn’t know how the office rent or phone bill was going to be paid the next month. And the local attorney community is filled with attorney horror stories: I know of one attorney – a very good one – who had not only put in all the time and effort required for a major personal injury trial but also $100,000 of his own money. And the jury no-caused the case. I know of another personal injury/wrongful death case involving a plane crash. A jury (in notoriously cheap Rochester!) awarded $100 million in damages, and that’s not a misprint. The trial judge reduced the award to $1 million. The Defendant/insurance company appealed that, and the appellate court threw out the $1 million award and dismissed the complaint.
That’s right, the net result after all that was zero. How’s that for a “trial tax”? 100% of $100 million!
And “zero” is an all too real risk in any contingency case, not to mention a much bigger risk than it used to be. There are some out there who are old enough to remember when large jury verdicts in personal injury cases were a regular news cycle feature. But you rarely hear about large jury verdicts in such cases anymore. The reason is that whereas no judge will interfere if a jury awards too little or zero after a trial, judges are very keen to interfere and “set aside” jury verdicts that they feel are “too high”; and in fact appellate courts more or less mindlessly affirm almost everything that is appealed from lower courts – except unusually high jury verdicts in personal injury cases. Those are routinely overturned. The plaintiff’s bar has learned this lesson, and if they get into a position to settle, then that’s what they do. Because there is generally no appeal from a settlement, and the trial judge approves it when it happens, so there’s no way he’s going to disturb it. Unlike a “too high” jury verdict, which gets all the People Who Matter upset, just like “not guilty” verdicts in criminal cases.
And so jury trials are disappearing. Not just in criminal cases, but in civil cases as well. Litigation on behalf of individuals against institutions has come more to resemble serfs supplicating their liege lords than a fair and open contest on a level playing field.
But I digress. After I turned down the half million and endured the yelling and screaming from partners and others about how crazy I was, the insurance company on the other side came up to $650,000. Opposing counsel and I went over to the courthouse to pick the jury and by the time we got there we told the judge the case was settled.
The client in the case being a normal person, and quite understandably, had no idea what to do, and just followed my recommendations. I didn’t tell the client about all the yelling and screaming.
Actually, as often happens when the trial is right around the corner, there is a strong desire to try the case no matter what the other side offers. You’ve put in all that work and you have everything ready. There’s fear but there’s also an impulse – probably not good judgment – to let the fur fly. If I hadn’t told the client that $600,000 was the target, I’m not sure I would have agreed to $650K, I wanted to try the case so much.
Clients often get jittery as the big day approaches, just like their lawyer. But by training and experience the lawyer is disposed to shrug that off and press gamely forward to the fight; the client on the other hand has a strong inclination to throw in the towel and have it all go away.
That’s another financial risk to the lawyer of contingency fee litigation that only contingency fee lawyers know about: what happens when you’ve put in all the work and made all the necessary sacrifices, and you’re about to go over and pick the jury and the defendants have made a substantial offer, but one that in your judgment is nowhere near enough – and from a personal standpoint not enough to justify having taken the case at all, such that if you thought that was all there was you never would have taken the case to begin with – but the client wants to take the offer? That can happen. It has happened to me.
Well, you try to talk the client out of it. In the end the client can pull the plug – after all, you can’t go forward without them – but under these circumstances summing it all up with “the client makes the decision” is just kind of facile and content impoverished, isn’t it? And what if you succeed in convincing the client to go forward? Well, if your judgment turns out to be correct and you win, there won’t be a problem. But if your judgment turns out to be incorrect and you lose, or don’t win enough, you might well have a problem and you’ll certainly be harshly second guessed. There is surely an element of self interest involved, but that is only part of what is driving you at the time the decision is made; yet in hindsight, being second guessed by others that part is probably all that will seem to matter.
See, just because you know so much more than the client doesn’t mean you are really, truly in that much better a position to make the decision than the client is. I know that.
The problem is, there isn’t anyone else.
In another case I told the client the target was $450,000. And we went to verdict on liability, and won, and then achieved exactly $450,000 on the damages end in a second trial. In that case the client was very active in the decision making and even the negotiating, understood the risks and benefits involved as well as any lay person could, and was happy with the result. But that is the exception. Most of the time, the client is too overwhelmed.
Did all the good outcomes occur because I have really good judgment bordering on clairvoyance; or is it self-limiting and self fulfilling prophecy, or on the other hand a demonstration of my triumphant will over the wills of others? No one seems to think it’s the first. Many have told me the second. And I suspect that many, many attorneys would believe the third in their darkened heart of hearts because they look at the world that way: it is a battle of wills. Yours or mine will prevail.
A lot of prosecutors are like that. Bad ones. Tom Moran is like that. He’s a very sick man. A psychopath.
My own thoughts about these things are: I just don’t know. I just worked on the cases, and with the clients, as best I could. Although I did have an occasionally overpowering fear of failure – which of course I made every effort to suppress – I never really thought about any of those other ego type things when I was in the middle of doing all of it, and I don’t really think about any of it that way now. But I’ve noticed that others do.
I’ve had other situations where my estimations to clients didn’t work out nearly so closely, of course – but notably, never if I was allowed to present a case to a jury. You see, for plaintiffs not only is there a danger that the judge is going to take away a “too high” verdict after the fact; a case is often dismissed by a judge before you can even present it. Unless the plaintiff is the government and the case is criminal, that is, in which instance the case is never dismissed by the judge. This is one of those structural disparities of power and privilege in the legal system in the US that has gone well past its breaking point.
But I digress again.
On the other hand I do know this much: in those cases I had, and others, telling the client that the important decisions are entirely up to them might really amount to nothing more than an evasion of responsibility. It is not right, or even prudent, to totally transfer decision making authority from the only person who is at least marginally capable to someone who is incapable of making an informed and intelligent decision at all. This ill-serves everyone involved.
And the client often doesn’t really want you to do that. At least not at the time the decision has to be made.
The whole idea of making this such a bright line rule is relatively new, since they started codifying legal “ethics”, itself a very wrong headed practice. It is fatuous professional posturing at one end, and irresponsible buck passing on the other.
But there’s another aspect to it: it’s easy for someone to claim, after the fact, that you crossed that bright line, because the situation is never really as clear as it really should be if we’re going to start drawing bright lines about it. And the issue only comes up, of course, if someone is not happy with the outcome. No criminal defendant is going to claim that you unethically failed to advise him of a plea offer if you get him acquitted anyway.
The entire concept is imported from the idea of “informed consent” in the doctor-patient relationship, in which the issue is frankly a lot more clear cut and supported by tradition. Yet Radley Balko links to what is, indeed, a very interesting read about how doctors generally eschew the treatments they routinely recommend and administer to their terminally ill patients. If there’s such a disconnect between what doctors and their patients do in similar and very stressful situations, what does that say? Do doctors’ recommendations to their patients reflect a desire to prescribe hopeless treatments in order to evade responsibility for delivering the harsh news that different recommendations might imply?
I wouldn’t lightly accuse doctors of that, but I would encourage them to be thoughtful and responsible in their dealings with their patients. And I would be very hesitant to draw bright lines that tread upon the legitimate scope of a doctor’s professional judgment about how he should relate to his patients.
Same for lawyers and their clients.