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The client was struck by a falling shelf inside a department store. When it came time to sue, he chose a lawyer who assured him his case was a sure thing. Not only would he win, promised the attorney, but the client should buy stock in the store. Things didn’t quite work out that way. The case fell apart, and the client ended up suing his lawyer for malpractice. The lawyer, now a defendant, tried to defend the suit by arguing that the client had a weak case — at which point his first words to the client came back to haunt him. Cautionary horror tale? Yes, but a true one, says Matthew Schwartz, the lawyer who handled the malpractice case. Schwartz, of counsel at New York’s Siller Wilk, says he has seen many attorneys succumb to the urge to overstate a prospective client’s case to persuade the client to sign the retainer. “It’s always tempting,” says Schwartz, “particularly in early conversations, before the client retains you, to make promises.” The temptation can come up in any context, but seems especially common in practice areas where lawyers don’t have ongoing business relationships with clients, such as personal injury law and criminal law. UPPING THE ANTE While most attorneys know better, many worry that disabusing potential clients of the idea that their cases are sure things will end up costing them business. “If there are any hints that the client is going to different lawyers, one of the ways lawyers seek to distinguish themselves is by upping the ante,” says Schwartz. Criminal New York solo defense lawyer Diarmuid White adds that some attorneys think the only way to inspire confidence is by acting like they believe they will win big. “A lot of lawyers come on very strong at the outset because they want to appear aggressive and a fighter,” he says. Also, say lawyers, lay people mistakenly believe that all cases are winnable, and that even slight injuries are worth huge amounts of money. People hear about the McDonald’s coffee case, in which a jury awarded a customer approximately $3 million after she was burned by hot coffee, and they think that the legal system exists to hand out free money, say attorneys. (The McDonald’s verdict was ultimately reduced.) In the criminal context, a surprisingly large number of defendants believe that any case can be dismissed with the right lawyer. Often, they have either watched a TV show, or even followed a real-life case where it appears as if a guilty defendant was acquitted, and come to the conclusion that a good lawyer can win any case. Blame it on the “cult of the superlawyer,” says New York solo criminal defense attorney Joshua Dratel, a vice president of the New York State Association of Criminal Defense Lawyers. He believes that the media make heroes out of lawyers who score improbable victories, without also explaining that those headline-making acquittals or multimillion-dollar victories were the result of huge resources, good facts, and a bit of luck. What’s more, clients end up encouraging lawyers to overestimate the case’s worth, since new clients tend to be focused on the bottom line. “The most commonly asked question of a new client is, ‘How much am I going to get?’” says personal injury lawyer Alan Schnurman, name partner of New York’s Zalman & Schnurman. Schwartz and others caution that overselling a case to a client can lead to problems down the line. “You are speaking into a tape recorder when you [make promises]. When it comes time to settle, and you want to settle for less than promised, that’s when they play back the tape,” says Schwartz. Likewise, in the criminal context, most clients’ biggest concern is their exposure, says Dratel. They want to know how serious the charges are and the possible consequences. But the truth is that worst-case scenarios in criminal cases are frequently grim enough to give anyone pause. ADVISING CLIENTS So what can a lawyer do to communicate enthusiasm to a client while also not encouraging false expectations? Personal injury lawyer Ronald Katter, co-chair of the solo and small-firm practice committee of the New York County Lawyers’ Association, says he tries to avoid giving clients any hard numbers early on. “I tell them I can help them,” he says, but cautions, “We won’t know what it’s worth until we get in front of a jury.” But, he adds, when someone’s been injured, the whole case usually comes down to what that injury is worth — and clients want a bottom line. “It’s a big problem,” he acknowledges. Regardless of what Katter, a New York solo practitioner, tells clients, the pleadings themselves can end up creating false hopes, he says. “Typically, I ask for a large amount in the lawsuit,” he says. But, he explains, this is to protect clients’ rights to future claims, and usually not because the injury is actually worth that much. For example, says Katter, a broken bone can turn into arthritis. If that happens, the damages would be greater because arthritis is far more costly — and debilitating — than a healed fracture. The problem, says Katter, is that some clients see that large dollar figure in the complaint and get their hearts set on it. His solution is to explain that the amount mentioned in the complaint was his way of hedging against the worst-case scenario. In the criminal defense area, it’s not always a bad thing to be overly optimistic, says White. “When clients first come to me, they’re basically traumatized,” he says. “I spend a lot of time simply trying to nurse them. I don’t give them all the bad news immediately because they’re not equipped to deal with it.” “You can’t say, ‘They’ve got you cold,’” says White. “A client is liable to jump in front of a subway.” Instead, says White, he gives them the bad news incrementally. Besides, he says, it’s hard to assess the strengths and weaknesses of a case without discovery, which generally doesn’t come until later in the case. White’s solution is to focus on the process during early conversations, as opposed to the result. He outlines the stages of a case, such as grand jury proceedings, discovery, suppression motions, and trial, rather than trying to estimate whether a client will do time, or how much, early on. And if clients are left with unreasonable expectations anyway? That can make an attorney’s life difficult, since those clients don’t want to settle. “A small percentage are never satisfied with the outcome,” says Katter. “They’re never going to want to be reasonable.” But on the other hand, clients who adamantly refuse to settle can end up getting better results. Dratel and White both say they have had cases that were ultimately dismissed — after advising the clients to take plea offers. “Sometimes,” admits Katter, “an unreasonable client forces the case offer to go up.” Wendy Davis is a freelance writer who reports on the legal profession. This article first appeared in the American Lawyer Media newspaper New York Law Journal.

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