4.4 The Problem of Lawyer Low Balling
The lawyer must be careful neither to “low ball” the client nor overvalue the client’s legal position. Of the two potential problems, low balling is the more common ethical pitfall.
“Low balling” refers to some lawyers’ practice of telling clients that their chances of success in court are very low, in order to please the client when the lawyer reaches a negotiated settlement of more than what he initially said the case was worth. The negotiated settlement makes the lawyer look like a tough bargainer, and the client is thankful and surprised by the amount of settlement. The lawyer guards against the possibility of valuing the case too optimistically, which may result in the client being disappointed and the lawyer looking like he failed. To protect against client disappointment, some lawyers low ball.Low balling denies the client the ability to make his own decision about the lawsuit. The lawyer has, in effect, made the decision for the client. Without an accurate assessment of the legal status of the case, the client may be too willing to settle, and decide to settle too low. The client’s decision to settle is not informed.
On the other hand, if the lawyer gives the client too rosy a picture, the lawyer is unable to reach agreement lower that the one promised, because the lawyer’s earlier promises make the lawyer too wedded to the rosier outcome. Some plaintiff’s lawyers, in particular, find themselves unable to step back from their clients case during the heat of the negotiation, and objectively assess the weaknesses as well as the strengths of the case. The lawyer’s job, then, is to be neither too hot nor too cold, but get the valuation questions “just right.”