#6 Covering Their Backsides

Lawyers like to cover their backsides.  Sometimes, this makes it hard to give legal advice.  A while back, I had a client who was stuck in a lawsuit.  He was stuck by the time we connected, I was not his first attorney.  The case against him was a long shot.  The plaintiff’s lawyer had a very small chance of a decent pay out, but a much better chance of winning little or nothing.   Either way, the plaintiff did not have much work to do, the burden of turning his case from gold to lead was on me.  So the cost of defending was more than my client’s likely exposure.

My client was from another state, and he wished out loud more than once that he had just ignored the lawsuit.   Mostly, he wondered about that after getting one of my bills.  My answer was easy.  You’ve already appeared in the case and if you stop defending now, the judgment against you will be limited by the judge’s imagination.  But about the guy before me?

This was of those rare cases where the risk/reward might have justified throwing the original summons into the recycler.  Plaintiff’s counsel probably didn’t have the facts necessary to get that big judgment.  Personal jurisdiction was an issue and pursuing my client in his home state would take big investments of time and money.  As lawyers, we’re supposed to explain these kinds of things to our clients and let them decide what to do.  Sometimes, we’re asked to make a recommendation.   But we’re always thinking about managing risks, especially our own.

The lowest risk thing for the lawyer to say is: “you have to defend the lawsuit,” even though the client may prefer to take his chances.   Theoretically, a lawyer who explains the risk can’t get in trouble if the client makes an informed decision and things go south.   But lawyers know proving that theory in a malpractice case would cost ten times more than their advice.   Which is why they’ll say “defend the lawsuit” every time.


Guest blogger Lex Fortis is a Chicago-based attorney with a nationwide practice.  He focuses on business litigation, insurance coverage and counseling small companies.  You can read his blog at http://www.lexfortis.net where he comments on practicing law and rails against people who write like lawyers.  Lex is also lurking on Twitter and Plurk.


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