My former boss, the legendary Ronnie Berke, once taught me a trial lawyers’ joke. The kind of joke that has more truth to it than fiction and one that made me a better attorney. The joke was passed down to him. Here is the joke:
How do you make a million dollars quickly? and the answer is… you take a five million dollar case and muck it up*.
Trial attorneys are hungry. Sometimes quite literally and sometimes figuratively. More than anything, we are hungry for our clients’ need to be heard and compensated. Our clients are often in psychological, physical and financial strain and a good attorney never forgets that. My clients and I talk, joke, laugh and cry together. We go through highs and lows together.
So how do you take a five million dollar case and muck it up? First and foremost, by representing a client you should not represent, and as the client, by not picking the right attorney. Trial attorneys tell their clients’ stories. And there is no story as complex, as nuanced, as devastating and as triumphant as that of a severely injured individual or an aggrieved family. The wrong attorney will never realize the connection that is so desperately necessary to serve as an effective teller of his/her client’s story.
There are many ways to muck up a case, or course. But not being the right attorney for the job, not feeling and relating to your client’s pain sets the stage for all the other major problems. When I take on a case, I make sure that I can connect with the client. I make sure that this is a fight that I do not only understand but one that I would be privileged, honored and in some sense one that I need to fight. It is by recognizing something in my client’s plight, a hardship that in a very deep level, I relate to and understand: a certain breach of trust that reminds me of something from my own past, a loss of innocence, a frustration. If you are an attorney or a client and you are not sure whether or not that connection is there, there are some telltale signs, either at the beginning, middle or at the end of litigation.
At the beginning, an attorney should tune in and try to sense whether her gut is telling her that this claim is potentially exaggerated or lacks merit. Don’t get me wrong, there is time to play defense attorney, but if playing devil’s advocate is your initial impulse, either the claim is not meritorious or you are not the right attorney for the job. In that case, your ethical obligation as the attorney is to walk away and allow the client to turn to a different advocate, one whose impulse is to serve the client’s interests. If you are the client, you should go with the attorney that you feel understands your plight because that attorney will always work harder for you. In the middle of litigation, you might get a sense as the attorney, that you are the wrong attorney for this job; if the file becomes your bane of your existence.; if every email bearing the file’s name brings with it a wave of anxiety; if every call you get from someone involved in the case or even sometimes from the client makes you cringe or brings about an unpleasant physical reaction, you are no longer the guy/girl for the job. At this point there is a dilemma. The case is already yours. I believe that then your ethical obligation as an attorney is to, at the very least, look for a different attorney at the firm that feels differently about the case and ask for help. Because you cannot do your best work when you are not the best advocate for your client. I would further argue that your other clients are suffering because one of your clients creates this black hole for your creative energy. Help your client and help all your clients by giving the case to someone who cares, or at least asking for help while you do some soul-searching and look for a different point of view, a different point of connection. As the client, if you are in the middle of litigation, if your case sits idly for no apparent reason, if you feel unheard or misunderstood by your attorney, you may be. Don’t get me wrong; cases sit and that is sometimes a reality in litigation. But again, use your gut. It may be worthwhile having a conversation with the attorney and asking him/her whether they feel they are attached enough with what happened to you to be the person that should tell your story to a jury. As the client you have to remember that the choice is always yours. You can stay or you can go. Always.
The most important telltale sign that your attorney may not be the best attorney for you is if the very process of litigation feels deeply re-traumatizing, even before trial. I won’t lie and tell you that litigation is fun at all times. It’s not. It is contentious. It is stressful, and yes, it takes you back to the traumatic event that brings you to us to begin with and doesn’t let those wounds heal right away. With the right attorney, litigation can also be healing and I argue that it needs to be. Litigation allows you to be heard. Litigation allows you to get answers. Litigation allows you to make sure, in many cases, that what happened to you or your loved ones will not happen to someone else. It makes you a better person and the world a safer place. An effective advocate makes you feel understood and heard, not just by him/her but by the jury and the judge. If you feel, as clients often do, that the world has turned its back on you, the right advocate is with you so you are not alone. Thinking about my current clients, I am humbled and pleased to realize that I am absolutely the right advocate for each one of my clients. Every one of my clients has a place in my heart. Whether the case is ongoing or whether a case has ended, my clients and their stories stay with me. There is no better way to practice because telling their story is telling my story, in a way. As attorneys, I see an urgent need for us to ask ourselves whether we are the right man/woman for each of our clients, not only for our own well-being, but for the ethical requirements of our profession and for the betterment of our clients. As clients, I urge you to find the attorney that makes you feel heard from the very beginning. The attorney that makes sure, no matter what happened to you, that you are not alone.
*Ronnie used somewhat more colorful language, which I will leave to the reader’s imagination.
By A. Emma Flynn