Practicing Defensive Lawyering: Leaving No Stone Unturned In the Land Where the Unicorn is the National Symbol

by Butler Snow LLP

It’s easy to criticize medical professionals when we believe they are engaged in “defensive medicine”.  The fear of legal liability in a future malpractice action sometimes drives medical professionals to order tests or take steps that are driven more with an eye towards the future lawsuit rather than obtaining a good medical outcome.  However, lawyers aren’t immune from having a similar mindset.

All too often lawyers approach a matter with the mindset that no stone can be left unturned.  This approach can be the equivalent of defensive medicine – it can be defensive lawyering.  In defensive lawyering, a list is developed of every document having even marginal relevance, every witness who might know something about a subject and every interrogatory that can be propounded.  Lawyers practicing defensively live in mortal fear of the smoking gun buried in the pile of documents or the mystery witness who appears out of nowhere to sink our client’s case. We believe a client will blame us if a case turns out badly.   In a world of infinite time, unlimited resources and bottomless bank accounts, the defensive lawyering approach is workable for all cases.  Unfortunately, none of us practice in that mythical land where the unicorn is the national symbol.

Many large organizations recognize the 20/80 rule of thumb.  The rule has many variations and they all work something like this: In most organizations “20% of the people do 80% of the work.” Another example of the rule of thumb is that in a charitable organization: “20% of the people give 80% of the contributions.”

In my experience, there is a corollary in the legal profession: 20% of your effort in litigation gives you 80% of your result.  In a case with projected $1,000,000 in fees, the rule would mean that $200,000 in fees gets you 80% of your result while the last $800,000 in fees gives you 20% of the result.  Why does this make any difference to lawyers?

When we seek solutions to legal problem we work for clients with limited time, money and resources.  While it is our job to give advice and provide alternative legal options, our clients know their own levels of acceptable risk and reward.  Clients are the ultimate decision makers in our world.  In working to find good solutions for problems clients face, we should always be mindful of risk and reward.  We should also be ready to explain to the client what a foreseeable risk costs, both as the direct cost of attorney’s fees and the potential cost of an adverse outcome.  Then the client is in a position to make an informed decision about the potential reward.

From a purely economic standpoint, no rational client will want to spend $100,000 to obtain a $10,000 judgment.  It makes no economic sense.  However, a client may be willing to spend that money if there is some additional “emotional” reward or business objective with a value beyond the $10,000 judgment.  If the client understands the risk and the costs of the risk, then the client can place the reward in the balance and make an informed risk/reward decision.

Finally, an effective  lawyer will not only adhere to the client’s decision regarding risk and reward, a good lawyer will document the decision process and periodically remind the client where the client decided to set the risk/reward bar.  Ultimately, such an approach will be result in a happier client at the end of the problem solving process.  And isn’t a happy client the best defense against dissatisfied clients?

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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