4.5 Giving The Client The Bad News
Another ethical problem can arise because the litigator doesn’t want to be the bearer of bad news. In fact, this is likely with a client like Ms. Addington. After all, Homestead may indeed build poor quality homes.
Imagine that Homestead had been dissatisfied with its other law firm. Perhaps the old law firm thought the client should drop the law suit and simply do a better job competing in the market place. Their recommendation led to Homestead wanting to switch firms. Now, it looks like the old firm’s evaluation of the lawsuit was about right. How does the lawyer deliver this “bad news” without losing the client?The lawyer may be severely tempted to let the lawsuit run its course, so that the bad news comes from the court and jury rather than from the lawyer. And, despite the well-known advice to the contrary, sometimes people do kill the messenger. Once again, the lawyer needs to understand that the client has a right to the information so they can make an informed choice. The skillful counselor should be able to give the information in a way that doesn’t risk the relationship. To do this, the lawyer needs to make sure that the client understands that litigation is the client’s choice, brought about by the client’s actions, with a number of perhaps unintended consequences. The client needs to see the lawyer as a counselor, not the judge. The lawyer can make these roles clear by describing the counseling process and by taking care with his language. He needs to be careful to both develop his language of prediction, and transfer any value judgments to be made onto the backs of the true decision makers. For instance, the lawyer might say:
Ms. Addington, I would predict three likely outcomes at a preliminary injunction. First, and this in my judgment is most likely, the judge could decide that a preliminary injunction is not warranted because of the court’s (1) uncertainty about the free speech aspects of an injunction—a prior restraint on speech—(2) and uncertainty about the nature of your product, and (3) the little evidence we have that what Best Homes has done comes from Best, or (4) that it has affected your sales adversely.
I would estimate our cost for gearing up in the short term would be about $140,000. On the other hand, if we can convince the court that though your sales have been good, they would have been even better without the behavior of Best Homes, and that you have been injured or are likely to be severely and irreparably injured, then the court might enjoin them from making false statements in the future. As the case stands right now, I’d say we don’t really have the goods on that, and it would depend on how both you and our expert would do in front of the court. Finally, there is a chance that the judge could side completely with Best Homes, and decide that your product is not of high quality, and that is a decision you certainly do not want public. I’d say the chances of the first result are about 60 percent, and the chances of the second two are about 20 percent each.Of course, some lawyers would be uncomfortable putting percentages on the outcome. They might prefer to talk in terms of “most likely” and “least likely” results. While percentages fine tune the client’s understanding, in either case, the client has been given the lawyer’s frank opinion about what will happen at trial so that the client can decide what risks he wants to take.
The language of prediction is also related to the jury’s role in the decision. The lawyer remains neutral. In addition, the lawyer is not attacking the client’s product or values, but the opposition is. It is the opposing attorney who is calling Homestead’s product inferior. The client is thereafter drawn into a discussion of the lawyer’s reasoning and prediction process, and is given the chance to understand the lawyer’s calculations of the outcome at the preliminary injunction.
The lawyer’s goal need not be to bring to the client a total understanding of his reasoning. After all, part of the reasoning process is three years of legal education and more years of practice experience. Yet the client is entitled to substantial understanding of the forces that go into the lawyer’s opinion. Just as the patient should be encouraged to inquire into why the doctor is recommending an option, the client should have the same opportunity to inquire of the lawyer. The patient doesn’t need to know exactly the basis of the doctor’s “percentage of recovery” opinion, whether based on epidemiological studies or on some other basis. The client doesn’t need to know, either, unless he asks whether the jury prediction comes from a comparison of similar cases, or from jury verdict research, or from the attorney’s intuition. The client, or client offeror representative, does need to have some information about where the lawyer predicts the case will end up and why. That is what the client is paying for.