So I have clients that are…less than thrilled with the amount of my recent bill.
“But we just paid $2,000! Why do we have to pay another $2,000 this month?”
“Because you told me to be aggressive and refuse settlement offers to bring this matter to trial. That’s the cost of me doing this.”
“You didn’t tell us that!”
Followed by me responding with every email that contains one key phrase:
“Litigation is expensive. It is not unheard of for a case going to trial to cost thousands of dollars a month while we are in active discovery, nor is it uncommon for the price tag of the entire matter to range in the tens of thousands of dollars. It is my suggestion that we reach out to discuss a possibility of settlement once we have conferred regarding what an appropriate settlement amount would be.”
This is a regular thing. It’s almost the hallmark of an hourly civil litigator to have to remind their clients of that one key thing: Litigation is fucking expensive.
This is a venting post more than anything. There’s no practice tip except what you may glean from reading between the lines. I’m ranting, and I’m ranting because I’m pissed. I’m pissed because every motherfucker who comes into my office receives the same fucking speech from me every fucking time they insist they want their “day in court”:
“Litigation is expensive. It is not unheard of for a case going to trial to cost thousands of dollars a month while we are in active discovery, nor is it uncommon for the price tag of the entire matter to range in the tens of thousands of dollars.”
And of course they all sit there, bobbing their empty heads like those little dashboard chihuahuas. Of course they understand, they completely get it, there’s no problem! They’re out for truth, justice, and the American Way! A JURY will certainly take up their righteous cause and write them an eight figure check for all of the harm that was done!
“I know for most cases it’s like that,” the client may say if they’re not wearing the I-wear-a-helmet-and-get-stinky-Play Dough- from-my-pants grin and bobbing their heads at me, “but not this one! Our case is airtight. There’s no way they can deny it.”
There’s always a fucking way they can deny. They will always deny it. You’re seeking $500,000. They are not going to throw their hands up, grin, and say “Oops! You got me! You want that payment in cash, check, money order, or unicorn shit?” (Note: Always take the unicorn shit).
“But our case is a David and Goliath tale! A jury will eat it up!”
Yes, because you have the years of experience and training to determine what a jury will and will not enjoy. Listen, asshole, you know what a jury really likes? Not being part of a jury. These people are not your friends, they are folks ripped from their daily routine to hear you mewling on about the contract that was insufficiently drafted, or the fraud that was perpetrated against you, the bad car you bought, etc. You know what’s sitting in the back of their mind, especially if the sole sticking point is damages? “Why the fuck didn’t this person just settle? The other side agreed they were at fault. They’re just looking for a payday. Well, fuck them.”
Plus, and this is important, juries are unpredictable as fuck. A jury may like a David and Goliath story…or a jury may just fucking hate the way you wear your hair and find against you despite the evidence. I’m good at my job, and I may be confident the jury will find your way, but there’s always the risk somebody got cream cheese instead of RASPBERRY cream cheese on their bagel that morning, and they’re out to burn down the world because of it.
(Quick side note: David ended up stealing another man’s wife, assigning the husband to the front line to get killed, and brought God’s wrath on his household as a result. Google “Absalom” before you start talking about David and Goliath. David turned out to be such a prick that, according to the Bible, God arranged things so David’s son would be killed while in open rebellion against his father. Let’s stay the fuck away from comparing ourselves to David here.)
“I’m not in this for the money,” they may insist, “I want justice.“
Oh, fuck you with a dusty stick. First, “justice” is an abstract concept that changes from person-to-person. There’s no “BOOK OF JUSTICE” out there. You have your position on what justice means, and the defense has theirs, and I’m sure their definition of justice in no way involves paying you every cent you’re asking for. My definition of justice doesn’t involve busting my ass, being up front with you about the likely costs, and then having to respond to your every fucking protest and demand that’s directly related to what I told you in the beginning.
Besides, and let me be frank (or Frank, if Frank is a guy who decided to go to med school instead of law school), because that’s my fucking job: You’ll get as much justice as you can pay for. I’m not an altruist or an idealist, I’m a lawyer and a businessman. If you want to go whole hog and spend six figures to get five, I’ll tell you it’s a stupid fucking idea and then I’ll chug along. However, if you’re going to pinch pennies and review every line item on an invoice, demanding that we operate within strict confines of billing amounts dictated by your balance sheet, you don’t want justice. You want a beneficial solution that makes financial sense for you. That’s almost never achieved by going to trial. It’s achieved by hiring a good goddamn attorney, sitting down, and listening to us when we say “At some point, we’re going to want to settle this. Otherwise the costs you’ll incur taking it to a jury are going to outweigh any possible benefit.”
Justice costs fucking money. If your idea of “justice” is they admit they were wrong, if that will bring you satisfaction, I can likely get that for you tomorrow. If all you want is an admission they wronged you and nothing else, I’m certain I’ll be able to negotiate the opposing party writing you a nice letter and having it hand-delivered by an executive vice-president of apologies, walking to you on a path strewn with fucking rose petals and read it while he kneels before you. If that’s what you want, I’ll get it.
If you want some fucking money, then stop talking about justice. You don’t want justice. You want compensation that makes you feel like the wrong has been righted, and if you’re a business client and that’s not enough to make you happy then you’re a bad businessman. If you spend $50,000 to get $100,000, you’re spending half of your collection to get an equal amount back. Litigation. Is. Expensive. If you have a chance early on to get $100,000 and only spend $10,000 in attorney fees, snatch it. In the immortal words of the Steve Miller Band: C’mon, take the money and run.
“You’re not really on our side,” the client screams, “you just want me to settle so you can get your cut!”
First, Fuck You. I have morals. Second, and more importantly, I get paid by the hour. You want to take the case through trial? I’ll happily bill you every fucking second of time spent doing that. I will bill you $30,000-$40,000 without blinking an eye, add it to my bottom line, and represent the fuck out of you. Quite frankly, because I bill by the hour, I got no skin in this game. I make more money if you don’t settle.
I get paid, win, lose, or draw. So when I sit down and say “Litigation is expensive and this is a good offer that I think you should consider,” I’m speaking from a position that has nothing to do with self-interest. I’m speaking solely in the role of a counselor, the role that you fucking hired me to perform. In the first meeting with every client I say the same thing in addition to my “litigation is expensive” spiel:
“Years ago I went to an immediate care center for a painful cyst. The doctor there was an old surgeon. I asked him what could be done about it, and he gave me two options: topical antibiotic that may clear up the cyst, or slicing my leg open right there and removing the cyst, which would definitely clear up the infection.
I asked him ‘What do you suggest?’ He looked me over, scratched his chin, and answered:
‘Son, I’m a surgeon. I’m always gonna want to cut you open. The question is what do you want based on what I told you.’
So when you ask me if I’m ready to go to take this to trial, that’s my answer. I’m a litigator. I want to take every case to trial. The question is whether or not you think it makes sense to do it.”
The gist is, if I’m telling you settlement is a better option, I’m telling you that because it is the better option. I have no skin in whether or not you settle outside of my ethical and professional responsibility to advise you it’s in your best interest. If you want to ignore my advice, I’ll get it in writing, reject the offer, and we can barrel along to trial. I get paid either way…but if I want to go trial, and if I get paid more to go to trial, maybe it should tell you something if I suggest that we settle.
“Other lawyers have said that we have a great case! We should hire one of them.”
I said you had a great case, too. That was before I got your file together. You still have a good case, but it isn’t a deadbang winner for all of the reasons I stated before. You want another lawyer? Cool. Here’s my last invoice, let me get the staff started on copying your file.
Alright, so this rant went on way too long, and here’s the basic lesson:
Confront your clients on their bullshit and manage their expectations. Your job as an attorney is to properly and diligently advise this fuckwits and, sometimes, just sometimes, to force them to see the fucking light. At the bare minimum, you need to make it absolutely clear what your role is, and that their case is not special to anyone but them. You need to be honest and forthright about the odds, and make sure that they can trust your opinion. Most of all, you need to, sometimes, gently lead a client away from what they think is righteousness and present them with reason.
In short, you need to be not only a “zealous advocate,” but a “trusted counselor.” Remember, there’s no case too big to settle, and there’s no claim so strong it can’t fail.