Legal Ethics and
Reform Legal Ethics and
Reform|
A civil lawsuit is many things. For a plaintiff it is a way to justice.
For the defendant it is a way to show that the plaintiff's estimate of
the damages done or injuries sustained are too high. But for the lawyers
a civil suit is a way to generate income.
The civil suit, in the common law system, comes to a head during "the trial". Here the parties have their arguments heard and evaluated by an objective entity (a judge or jury) that "decides" the case. This culmination is a very desirable thing because it gives each party a sense of relief and satisfaction even if they don't get what they want. There is a cathartic experience to having the case heard and an objective decision rendered. Unfortunately, lawyers are just as strongly drawn away from going to trial. A trial means intense preparation: deposing opposing witnesses, coaching witnesses about there testimony, preparing opening and closing statements, going through jury preparation, preparing briefs on the points of law involved, etc. The tension between the lawyer's desire not to "go to trial" and the parties desire for the "cathartic experience" of getting a trial verdict, oftentimes manifests itself in the "settlement squeeze play" (hereinafter the "SSP"). The SSP can have several elements and litigant should be attune to his lawyer introducing these elements into the discussion of the case: 1) The quality of the client's case is not as strong as it was earlier. When the case was first presented to the lawyer the case "looked good"; the lawyer was anxious to "help you". Now that the trial is approaching the "case has major problems" or "it looks weak here or there". 2) The opponents case which was formally "really just a frivolous case" is now "much stronger". 3) The crowning element (or blow) is the revelation that "the cost of going to trial will be 2, 3, or 4 times" what was originally planned. The impact of this "revelation" in the thirty, sixty to ninety days before trial is oftentimes explosive. The litigant has already paid several tens of thousands of dollars and has been budgeting a like amount to finish things up. Suddenly the economics of the lawsuit are changed completely. Large amounts of additional money have to be raised. 4) The icing on this cake is the lawyer's demand that the additional money be paid before trial. This puts additional pressure on the client to "settle or else". 5) The lawyer doesn't execute 1, 2, 3, and 4 against his client until he has the other attorney on board ready to slam the opposing party with similar tactics thus forcing a settlement. The legal fraternity in America is proud of the fact that a high percentage of their clients "settle" their cases. This pride should be colored with a large dose of shame when one considers the tactics being employed to get these settlements. There is one obvious protection against the cost escalation tactic and the pay immediately tactic mentioned in items 4 and 5 above. A pre engagement letter between the lawyer and client, (1) capping the total cost and/or (2) spelling out when unexpected payments would be due, would help a lot. Any experienced trial lawyer is going to resist such a letter so a litigant might have trouble getting a qualified litigator to represent him if he required such a letter. If Congress or the State Legislatures required that such letters be prepared for every engagement, the litigators would have to agree to them.
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