Not Worth It
I became a litigator because I love to be a client’s champion. I still enjoy going to court, explaining why my client is right, and doing the work to bring them a victory they could not have obtained themselves. Yet I frequently advise prospective clients: It’s not worth it. In those situations, either that person’s proposed claim or defense is so unlikely to succeed that they should not assert it, or the cost of litigating would exceed the benefit even if they won.
Why should you read this post about not litigating claims?
Credit: José Guadalupe Posada wood engraver, José Sanchez photographer, A woman kicking a man while he walks away from her, cropped by cjmwiki, CC0 1.0, Metropolitan Museum of Art, print © 1900.
Why It’s Not Worth It
The things that motivate some people to litigate are not always the things that the law is intended to fix. The law is set up to provide judgments to plaintiffs that allow them to collect assets from defendants pursuant to specific legal theories. Often, people just want to sue because something bad happened to them, regardless of whether a legal theory attaches liability to a particular defendant, regardless of the cost of the suit compared to the amount of financial damage, and regardless of whether that defendant has enough available assets to pay.
As an example, many people call lawyers, complaining about an injury. But unless there is a specific defendant at fault that caused the injury, the lawyer has no one to sue. The prospective client may claim that her employer is at fault, but because an employer may enjoy legal immunity from personal injury claims, again, the lawyer has no one to sue. The prospective client may claim that a third person caused her injury, but unless harm can be traced to that prospective plaintiff, unless there is a legal theory that makes that third person legally liable, and unless that third person actually has enough money to pay a judgment, suing that person may be pointless.
On top of all of this, lawsuits take a lot of work. People often call lawyers complaining about losses of several thousand dollars. And, true, several thousand dollars is a lot of money. But the work of drafting a complaint, opposing a motion to dismiss, document discovery, depositions, trial, and judgment enforcement can cost several times as much. Perhaps it is simply too late to bring a complaint. And so, unless there is a legal theory to entitle the plaintiff to recover her attorney’s fees and a defendant who has the money to pay (and refuses to come to the table voluntarily), it may not be worth the substantial cost. All such a plaintiff would get is the chance, not the guarantee, to recover a smaller amount of money than litigation costs.
This is especially true since a large share of cases settle after the plaintiff compromises. And so a plan to sue a defendant for a small amount of money with the hopes that the defendant will need to pay the plaintiff’s legal fees after a trial may not make sense if the defendant ultimately proposes a settlement the plaintiff accepts for less money than the lawyer needs to charge for her services.
Why I Might Say This
I try to develop a profile as a trusted advisor that people can come to when they are considering litigation. And so people do not just come to me with fully formed cases or defenses; they come to explore their options. This is a great place to start. Often, I can help as their lawyer, and we’ll go from there. But inevitably, some people come to me, looking for honest advice about what to do, and my advice is that there is nothing to do.
On the one hand, this is a bit of a service. It helps them, and I also have an economic incentive to focus my and my associates’ time on clients who pay our firm. So of course I’ll tell people when it is likely worth spending money to sue someone or to defend themselves against a potential suit. Turning away prospective work is not easy. By telling someone in a consultation not to hire me, I am spending time to convince them not to give me money.
Still, the reasons to tell people are several:
It is accurate. People come to me for honest advice, and that is often the honest advice.
People need to hear the truth. I believe that it may provide closure to people to know that they spoke with a lawyer and learned there was nothing legal to do, rather than feel like they failed to explore all of their options.
There are professional obligations. If I make bad arguments in court, judges will be mad at me. If I file frivolous lawsuits, I could get in trouble with the state bar.
It helps manage expectations. If I tell someone they’re likely to win a case and then they don’t, they may be upset with me for doing a bad job.
I want to build trust and relationships. My hope is that people remember me for when they have a viable case and return, knowing that I am someone who heard them out and was knowledgeable and responsive. And knowing that I am too honest to say whatever I need to say to get them to send me money.
It takes time to give free consultations, and it’s hard to go in knowing that sometimes I’ll be telling people something they do not want to hear.
How People Respond When It’s Not Worth It
Usually, not great!
People are often angry: Something clearly bad has happened and it’s not right! Surely something must be done about it? And anything that doesn’t sound like full-throated support can be misinterpreted as hostility, or worse, sympathy for the wrongdoer.
I take great care in these conversations to make sure that the prospective client is heard. If I agree that whatever bad thing happened to them really was bad and unfair, I’ll say so. And I explain the relevant law and show that they can trust my experience, as far as such things are predictable. In practice, what is likely to happen for these prospective clients is they may spend a lot of money and not get the relief that they want.
Even so, many people do not believe me. But this case is so easy! I spoke to another lawyer who told me so! Or perhaps, ChatGPT told me this I’d win this case. Any judge would obviously side with me because this is such an obvious injustice! Would you please do this case for free? I have heard it all—many times. I try to calmly explain further in the hopes that people take the substance of what I say seriously and become convinced. Often, however, they stay upset at me personally. They may doubt my motives for recommending against litigation.
Other times, people thank me for my time, and I never hear from them again. Maybe they moved on and didn’t have another problem that required a litigator’s help, which is good. The best case scenario is that they move on, but I hear good news from them later. My door is open.