The Smoking Purse

In my short seven years of private practice, I handled only one divorce case. It was enough. My client was a woman who said that her husband was domineering and prone to violence. So, I was not surprised when I got a call from a sheriff’s deputy in the county in which my client’s husband lived. The deputy was calling to warn me that the man might show up at an upcoming hearing with a weapon. I called the court to let them know about the deputy’s warning. They agreed to have an officer present at the courthouse on the day of the hearing to search my client’s husband. This was before courthouses had metal detectors. I assured my client that we had taken necessary precautions to protect everyone.

On the day of the hearing, we were greeted by a deputy. When the husband arrived, the officer searched him for weapons and found nothing. He then turned his attention to my client and told her that it was her turn. I thought that was odd. I was the one who had requested the extra protection. Nobody had suggested that my client might pose a danger. But I thought we should agree so that we could get on with the hearing. To my surprise, when the deputy searched my client’s purse, he pulled out a loaded .38 Special and confiscated it. I had not even thought to ask my client whether she planned to show up with a weapon. I assumed that she did not pose any threat to her husband. And maybe that was true, but I still should have asked.

As lawyers, we often assume the best about our clients. We don’t want to know the bad parts. We sometimes don’t question our client’s account of the facts. We take their word. We might also avoid the hard questions, the answers to which might damage the client’s position. Or maybe we don’t look for the holes or the weaknesses in their case, because we see it as our job only to present and promote the positive aspects of their case. When we do this, we often do it to the detriment of our clients. Sometimes, it is our client who is carrying the gun.

The risks of not looking for the negatives in your client’s position are substantial. You can be sure that opposing counsel is investigating the facts to discover your client’s weaknesses. They are combing through social media feeds and interviewing witnesses. They are doing background checks and reviewing reports. If you are not looking for those same weaknesses, you are likely to be ambushed at a mediation, deposition, hearing, or trial. You must question your client’s account of the facts. You should go behind the facts they have provided and verify their truth and accuracy. Inaccuracies do not always mean that your client is lying. They might just have a date wrong or might not remember what occurred.   If they have provided dates that are critical to deadlines in the case, be sure to look at reports to verify the client’s recollection. If you suspect that they are lying, you should be aware of your ethical obligations under Rule 3.3 of the Rules of Professional Conduct.

In addition to a thorough factual investigation, it is essential to research the law to anticipate deficiencies in your theory of liability or damages. Over the years, I have seen many malpractice claims where the plaintiff’s theory of liability against the lawyer was that the lawyer failed to explain the weaknesses in the client’s case. These clients paid substantial fees to their lawyer to pursue claims that were either not well-grounded in the law or lacked recoverable damages. I have also been involved in many legal malpractice claims where we used mediation as an opportunity in opening statements to explain to the opposing party why their case was fatally flawed. You do not want to be that lawyer who must go to a break-out room and explain to the client why they are hearing this for the first time.

The next time you are hired by a new client, ask the client to provide a detailed factual account and documentation to support their account. After you have reviewed the account and supporting documents, look to see whether there are holes or inaccuracies. If there are, ask the client to explain. Consider asking the client what they see as the greatest weakness in their position. Explain to the client that they must be honest and forthcoming for you to be able to effectively represent them. Talk to witnesses who have relevant information and similarly ask them to be honest with you and share information even if that information is detrimental to your client.

Once you have completed your initial investigation and discovery, consider doing a litigation risk assessment for your client. In your assessment, you should be frank about the weaknesses in their position. For example, your client might have a strong factual basis to support a finding of liability but have very little in the form of recoverable damages. Your client needs to know about these weaknesses. This will allow them to make an informed decision about how to proceed in settling their case or proceeding to trial.

Growing up, my dad used to tell us something about how, no matter how thin you slice bread, there will always be two sides. It turns out that this saying came from 17^th century Dutch philosopher Baruch Spinoza. As with many of my dad’s sayings that I thought were meaningless at the time, I have come to see the wisdom in this. As lawyers, it is important for us to recognize this truth. It does not mean that you do not zealously advocate for your client’s position. It simply requires you to open your eyes to the weaknesses and potential flaws in your client’s case.