Turn on your TV today and it’s a safe bet that within ten minutes you will see a commercial by some local or national law firm promising that they will win your case and get you an award of big bucks. These ads allure would-be clients with high-sounding claims. “You deserve to be paid!” “We don’t get paid until you do.” “We specialize in winning.” “Call us to find out what your case is worth.”
Such claims are often misleading. Any experienced trial lawyer worth his or her salt will tell you that every case is different. They will also tell you if they are honest, that the only thing certain about litigation is uncertainty.
The American Bar Association has issued the Model Rules of Professional Conduct to govern lawyer advertising. Specifically, Rules 7.1 – 7.3 address how law firms may promote their legal services. All states, including Tennessee, have adopted these rules in some shape or form. One rule, common to all states, prohibits lawyers from making “false or misleading” communications about “the lawyer or their services.”
I have tried lawsuits on behalf of clients for the last 40 plus years in state and federal courts in Tennessee and in over half of the states in the U.S. I have won cases that frankly I should never have won because of factors over which I had little to no control. I have also lost cases that I felt confident were winners, but the jury believed otherwise.
The decision to go to court is always a monumental one for any client. Here are some considerations I make it a point to discuss with my clients before filing suit.
- What does a victory look like in your case?
I am always suspicious when a client tells me “this is not about the money.” The truth is, it is always about the money, because that is the only relief you can obtain in court. The judge will never give a jury this instruction: “Ladies and gentlemen of the jury, this case is not about money, it’s about principle.”
- How strong is the issue of liability?
Liability means that somebody was responsible for something. For a case to be solid and in your favor, the other party would have to be responsible for your loss or in other words, at fault.
Rarely is there a clear case of liability. Typically, the issue is much more complicated and requires hours of careful and extensive research. Take heed whenever a lawyer tells you that in your case liability is open and shut.
- What will it cost to get the case to trial?
Recall that in Luke 14:31 Jesus cautioned: What king is about to go to war against another king who won’t first sit down and consider whether he is able with ten thousand men to oppose
the one coming against him with twenty thousand? It is important to consider costs. Your attorney should estimate your potential lawsuit costs, whether the case is likely to end in a settlement or a trial, how much that the settlement would be, and whether or not there would be a recovery at all. A good lawyer will tell you that if the recovery you will receive does not cover the costs of getting to trial, then the case may not be worth it.
- If you win, can the judgment be collected?
Some defendants are what lawyers call “judgment-proof.” Suing them is akin to drilling a dry well. If I were able to collect on all the judgments I had obtained over the years, I would be writing this article from some luxurious place in the south of France.
Larry L. Crain, Crain Law Group, PLLC www.crainlaw.legal
