GPSOLO July/August 2010
How to Evaluate a Case in 15 Minutes
You sit in your office (or a local coffee shop—it doesn’t matter). Across from you sits a total stranger, let’s call her “PC” for potential client. If you’ve allotted 15 minutes to PC for an initial consultation, can you meaningfully evaluate her case in that short amount of time? Law practice skills don’t get much more basic than that.
It can be done. You just need a systematic way to go about it. In this article, I share my system with you. Over time you can tweak it to fit your own style, personality, and office organization.
One step the initial consultation should not include is your sitting there helping PC fill out an intake form with her name, address, phone numbers, etc. Either have your assistant cover that ground when PC first calls, or mail a questionnaire to PC to fill in and return before your initial consult. The questionnaire should include a short narrative by PC describing what she wants to see you about.
Now the initial consultation can begin. It’s a five-step process.
First step: Ask PC an open-ended question such as, “So, what can I do for you?” PC usually responds with a rambling, stream-of-consciousness story about what happened to her, containing a few facts but a lot of personal opinions, hearsay, and emotional venting. Resist the urge to interrupt to attempt to get to the point. There is good stuff here. You can note the facts to get an idea what sort of case might be lurking here: breach of contract, a tort, etc. This can form the beginning of your framework. All the other stuff lets you note how good a witness PC is likely to be at trial or deposition. Can she tell an understandable story? Do her emotions overwhelm her just while talking with you? Does she have any idea of what she wants—compensation, revenge, “justice,” punishment of the villain? The only one of these you can help her get is compensation. If PC wants anything else, you don’t want PC.
Second step: Ask simple, short-answer questions to fill in the facts, as opposed to emotions, opinions, hearsay, and venting. Lead PC through a 1L outline of the elements of each cause of action that might be present, leaving out the legal jargon. Let’s use good old negligence as an example. Duty, breach of standard of care, proximate cause, and damages might become: Why should the other person have been looking out for you? What should the other person have done to prevent what happened to you? How did what the other person did or didn’t do lead to your injury or property damage? What have you lost/what has this cost you/what medical treatment have you had/what repairs to property have you had to make?
Dig hard for actual facts. When you get a material fact, immediately ask, “How can we prove that in court?” Pay particular attention to damages. Potential clients often tell what sounds like a horror story, then, when pressed, admit that their only actual harm was embarrassment or anger. No damages, no case.
Third step: Go through the story again. This time, use the same pattern to dig for hard facts supporting whatever affirmative defenses might be lurking in there. Besides finding possible affirmative defenses, you’ll also get some facts that support PC’s case that PC (or you) missed the first time around. Why? Because this time you’re looking at the same story from a different perspective—the opponent’s. Watch for any variance in what PC says the second time compared to the first.
Fourth step: By now you know whether PC has a real, live cause of action, and what the case is worth. Or do you? What if you need expert testimony to prove one or more facts? Unless you thoroughly understand medicine, engineering, economics, or whatever esoteric discipline is involved, you don’t know if PC has a good case. What if PC has brought along 500 pages of documents that you need to review. Now what? If you suspect PC has a good case, you might want to explain that you can’t give her a good assessment of the case without more work; suggest a time-and-expenses or flat-fee engagement limited to completing that assessment. Explain exactly what work finishing the assessment will entail. This also is a good reality check for PC. If PC can’t understand why it is necessary to read the 500 pages or get information from an expert and that you are willing to do that without her coughing up a much larger retainer for a much greater commitment, you probably don’t want PC as a client.
What if the opposite is true? You don’t think PC has a case. Now is the time to tell her so—and why—and suggest that she get a second opinion if she wants to be sure. Warn her about limitations periods. After the consult, send her a letter that reiterates your opinion, suggestion, and warning.
Fifth step: Potential clients often have no idea what they are getting into, so lead PC through the entire process, from initial consult through trial. A simple outline of the major stages—without legal jargon—is all you need to structure this step. With each stage ask simple, short-answer questions to find out if PC has the emotional, economic, time, and support resources necessary to actually take a case clear through trial. Sure, lots of cases settle, some early on, but some don’t. PC needs to know what she might be getting into and decide if she is prepared to follow the matter through to the end. If she’s not, you don’t want the case. Don’t forget to make sure PC understands that for the case to settle, she must give up the idea of recovering fees and costs—if the possibility even exists in her case.
And that’s it. You’re done.
Five steps, each one structured to keep the interview on track, will give you a usable assessment of the nature of the case, the value of the case, and the nature of the potential client. You can use the same steps and structure for defense cases, just reverse the spin on all your questions.
Practice makes perfect. This process can be done in as little as 15 minutes, but not the first time you try it. Interviewing is part science and part art. Even when relying on the steps I’ve outlined above and your own knowledge of law, finding the wheat in the pile of chaff brought by a potential client takes practice.
And here are two more points to keep in mind about interviewing: First, all potential witnesses lie to you, including your client, intentionally or unintentionally. Humans lie because of their strong need to protect their self-image. No one wants to be seen as stupid, clumsy, or foolish, so people resist answering any question they think might allow them to be seen in a negative light. When asking your simple, short-answer questions in your initial consult, anything other than a simple, short, direct answer is resistance. Do whatever you have to do to get that direct answer. If you don’t, opposing counsel will—at deposition, at trial, or both. Tell the interviewee that. Dig hard for actual facts.
The second point to remember: No potential witness knows the difference between evidence and a hole in the ground. One reason why humans don’t distinguish between evidence (something that actually tends to prove a fact) and opinion, hearsay, or emotion is that they see the world and think about the world from their point of view only. Few are ever taught the difference between fact, evidence, and supposition, or even think about the difference. So keep asking “how can we prove that” over and over (and over) again. Make it your mantra.
I believe interviewing is so important a skill that it should be taught in law school just as it is in medical school and journalism school. Consider reading a couple of good interviewing texts.Whether you are a newbie or a veteran practitioner, I hope you find my suggestions helpful. I wish you good fortune in your interviewing adventures.