The Triangle Defense
By Carl Palmer
When you open a new file or represent a new client, consciously or subconsciously you are making an evaluation about the case and the client. When starting out in a new practice, you might want to consider a more formalized evaluation system.
My case evaluation system is simple. I imagine an equilateral triangle upon which I hang my three concerns. At the first angle I attach “client,” on the next angle I attach “law,” and on the third angle I hang “fees.”
“Client” is the most important assessment, so I start with it, and often return to it. There’s a joke running around presently that has a punch line of, “But would you have lunch with them?” That is sometimes a good question to ask. If you have to spend a lot of time in close quarters with a particular client, what is the personal cost going to be?
Life is short. Perhaps the fee angle is so appealing in a case that an unappealing client (think: day-after-day depositions, traveling together, phone messages, staff being repulsed by them, etc.) is really of no matter. Perhaps the wolf-at-the-door is more of a problem. Particularly when the “law angle” is an area in which you have extensive experience, you might want to weigh the “client” verses the “fee” angles. That can be a seductive scenario. You know the law cold—you’re about as abrasive as the prospective client (you feel), and you see the fees in your account up front. My advice is don’t jump in.
The threat of bankruptcy can often impair how clearly you assess the client and fee angles, so make certain that in this situation your first-level assessment of a prospective case is thorough.
There are other dynamics at work among the angles. A likeable personal injury client will have an effect on whether the case is one for the jury or not (the “law” angle). Of course, a low-value personal injury case, which probably will be settled without litigation, will suit just about any client personality (the “fee” angle).
In a case where the “law” angle represents a steep learning curve for you, the concerns for the client and your fees are about to be tested for their ambiguity tolerance. It’s okay to learn on the client’s dime. That’s the way it works. There is a point, though, at which your “learning of the law” may cause you not to bill the client.
This will sometimes lead to putting priority on cases that can be billed and collected rather than in cases where you are learning more law. Fees then have their interplay with both the client and law areas of your triangle. In the evaluation process, you may return to the client angle to assess exit strategies in case the fees are no longer recoverable should that come to pass. The possibility of withdrawing from representation is usually discussed with the prospective client, but in your evaluation before taking the case you might reach the conclusion that this is not a client you would want to fire once underway in their case.
If you make your living at the practice of law, there is no case where the client’s cause is so noble that you can ignore the other two concerns. There is no fee so great that it should blind your review of the other issues. And, if you want to work on the path of the laws there is so much pro bono publico to do. You don’t have to look at the law and fee angles in pro bono work. I still look at the client angle in them however, for that personal reward in helping those who but for pro bono services would be without legal representation. Try the triangle approach in both types of cases next year.
Carl Palmer is a lawyer practicing at the Seattle law firm of McCune, Godfrey & Emerick, Inc., P.S. He has clerked for a federal judge and worked for both small and large law firms.