Case Selection Can Make or Break a Solo

Paul Schorn

Texas Lawyer

Lawyers are gamblers. Just ask an advocate leaving the courthouse with a verdict in hand. One retired district judge routinely admonished counsel at docket call, "So, we're going to trial. I guess at least one of you is making a big mistake."

Betting on a case and losing always hurts, but it hurts most for the solo practitioner, for whom the smaller scale of practice makes every case matter that much more.

So how can solos pick good cases and avoid expensive mistakes? No strategy works all the time, and losing a hand every now and then is the price of staying in the game, but three rules help better the odds.

1. JUST SAY NO

Good case selection is primarily a matter of case de-selection. Lawyers should actively reject cases, just as they actively strike bad veniremembers. The default setting should be, "Thank you, no," unless the case earns acceptance.

When I opened my solo practice, a more experienced lawyer told me, "No decision will be more important to your success than the decisions you make to not take cases." That was priceless advice. A bad case is an albatross around your neck -- a drain on time, money and morale that can drag on for years. Don't let the pressure to fill your filing cabinet push you into taking questionable cases. This pressure can bear down with greater weight on solos, who might see a gaping hole in their docket after the quick resolution of two or three big cases. Be patient. Better to pick the rare nuggets of gold (or at least silver) than haul around a sack of rocks.

Solos can improve their case selection by working on a contingent-fee basis and advancing all expenses. It may not be easy, but it pays huge dividends in the long run. Money up front is often a trap, tempting the lawyer to accept longer odds than are sensible. You will be less inclined to devote yourself to losing causes when money, which is more tangible than time, is on the line.

Legendary golfer Lee Trevino, who was born into poverty in Dallas and picked cotton as a child, was once questioned about the pressure of making a putt with hundreds of thousand of dollars of prize money on the line. He said that wasn't pressure at all. Pressure, he said, was making a putt on a $500 dollar bet of your own money with only $10 in your pocket. That way of thinking teaches better choices, just as it made Trevino a truly great golfer.

Once a solo practice is up and running, the burden of advancing expenses is negligible. Expense money simply circulates through cases the way blood circulates through a living body.

2. IT'S THE CLIENT, STUPID

Cases are just the problems of people, and it is through those people that the jury will hear the case. A solo must, therefore, consider how likable or admirable a plaintiff is before taking on a dispute. If you can't stand your client, chances are a jury won't either, and juries rarely help people they dislike.

As a defense lawyer, I was trained to analyze cases primarily from a summary judgment perspective. What are the facts of the case as they will appear in artfully drawn affidavits? Since switching to the plaintiffs side, I've been lucky enough to work on several cases with renowned trial lawyer Broadus Spivey. I was puzzled at first when he seemed to take forever to get to the facts when telling me about a new case. He'd tell me casually about the potential client, as if she was an old friend, where she grew up, about her parents, formative experiences in her life and other seeming trivia. I finally figured out that this was an important lesson: A lawyer must know his client, and like her on some level, to be a worthy and effective advocate.

3. GET A SECOND -- AND THIRD -- OPINION

While liking a client is important, it can't drive the case selection process. Solos are isolated; we don't have committees to screen cases or even partners down the hall to consult. This means that solos, even more than other lawyers, can get to breathing their own fumes, believing in a case more than is reasonable.

To keep gut feelings in check, each solo must develop a group of people he or she trusts and bounce potential cases off them for reaction. Members of that virtual firm should be diverse. They should include lawyers in the solo's area of practice, preferably from the plaintiffs and defense bar. Their experience with similar cases is important. The consulting group should also include lawyers in other areas of practice or lawyers with special expertise in procedure or appellate work.

However, the most valuable feedback the solo will receive comes from nonlawyers. These people most resemble the folks who will sit on a jury and decide the case, and their opinions are gold.

It is essential that the nonlawyers the solo consults be people who will shoot straight. Solos need people who feel free to tell us when we're full of it. Boosters will steer us straight onto the rocks. New boyfriends or girlfriends -- and adoring mothers -- make bad members of a virtual firm. Battle-tested friends and spouses of more than 20 years are excellent candidates. When you tell these folks what the other side did and their response is, "They did what?" plead for exemplary damages. If they shrug and say, "Big deal," it might be better to say, "Thank you, no."

Paul Schorn is a solo practitioner with offices in Lockhart and Austin, Texas. He represents plaintiffs in employment discrimination litigation.