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Comments

Ted

I've gone all in on a pair of twos.

Ed Guest

What a great post! Thanks.

Mike

Great post. I really liked your point that one should not confuse the business side of his cases (i.e., the cases one takes the pay the bills) with his pro bono side cases. So long as lawyers recognize their responsibility to take pro bono cases, no matter how far the business aspect creeps in, law will always remain a profession.

Eh Nonymous

I just want to echo what Ed and Mike said, and point out this:

Ted is hilarious.

Also: Ted, and Walter if you happen to read this, I owe you guys a sincere apology for my intemperate remarks the other day in a previous post on this blog. I will try to make amends here and on my blawg, by toning it down and owning up to my mistake here and by posting there a conversation I had in which I realized what a disserve I had done to everybody by flying off the handle.

Back to the post at hand:

Ted's point is that in gambling, it may make strategic or tactical sense to bluff, to go all in when you've got the non-precursor stage to chicken salad. In practice, however, neither bet-the-company defense practice nor bet-the-practice plaintiff's work can involve reckless behavior.

Clients get to say when to settle, but it's a lawyer's job to say when a claim or defense should not be brought or raised because it is a sure loser, and it is emphatically a lawyer's place to say that a claim or defense is a loser and should be settled rather than fought to ignominious (and costly) defeat.

Defense lawyers face severe financial disincentives to encouraging early settlement of claims that do not on their face appear to be bulletproof. Time value of money, client expectations, and so on. With experience and authority, an excellent defense counsel could tell the client, "This case against you will cost you millions, unless you come to the table now and in earnest. Mess around with this claim, and you will not only cost yourself extra dollars when we are forced to the table, but you will earn the hatred of the other side, for fighting when you could have settled." There will seldom be an occasion for that kind of talk, is my guess.

Contrariwise, a plaintiff's lawyer (note the change in noun) must be prepared to have the Hard Talk with a Victim, a potential or prospective or current client who wants justice, and expects us to provide it for them. We can't always. I have personally turned down clients in several of the following categories:

- we don't do that kind of case
- it's a purely local-law case out of my local jurisdiction, and I have no experience in that area
- it's either frivolous or a long shot at best
- damages are probably too small for it to be economical for us to bring it under any circumstances other than pro bono, and I don't have time at the moment.

Fortunately, I have the local Philadelphia Bar Assn. Lawyer Referral Service, and I almost always refer cases I'm rejecting to them. Still, it always hurts to be forced (by economics, by practical concerns) to say "no" to a prospective client who seems genuinely aggrieved. We've got to, but that doesn't make it feel any better.

Jeannie Elliott

Great article. It is always nice to see how attorneys evaluate cases and determine which ones they will take and which ones they will not. As economists who work with attorneys in injury and wrongful death cases, we see this all the time.

Many attorneys,rightly so, are concerned about expert fees all the way up to the time of trial. One thing that we have seen increase recently is the number of attorneys that ask us to provide a down and dirty pre-expert report estimate of the economic damages in a case. Some say that this helps determine how far they want to go on a case or in the retention of certain experts.

What some attorneys tell us is why spend $5000 on an expert to proof up $10,000 worth of damages?

Great article! Keep up the good work.

Jeannie
lostcompensation.com

John Day

Evan - thanks for the nice coffee mug and for giving me the opportunity to post on your site.

Jeff

Great essay!

alan

very interesting article especially the last comments about expert fees all the way up to the time of trial,this is always required to give a professional expert opinion on information connected with the case. Hope you understand the whole importance of this.

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