The Decision to Take a Case

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As a sole practitioner, it may be tempting to take every case that comes across your desk.  However, whether or not to take a case is a big decision and many different factors go into making that decision. This begs the question, “What should I consider before taking a new case?” Below are a few factors that I recommend considering when making such a decision.

  1. Do I have a good understanding of the law surrounding the case?
  2. How much time is the case going to take to complete?
  3. What costs will be involved in taking the case?
  4. What are the chances my client will be successful in their case?
  5. Should I take the case on contingency or get paid an hourly fee?

Do I have a good understanding of the law surrounding the case?

It’s not necessary to know every single thing about the law surrounding a potential client’s case.  You do, however, need to have at least a cursory understanding of the law and how it applies to your new client’s situation. For instance, if a client calls me wanting me to defend them on murder charges, I would automatically decline the case and suggest they contact an attorney who focuses on criminal law matters, specifically capital cases. On the other hand, if a potential client calls me because they're being sued for breach of contract, I will happily take the case so long as my other criteria are met. While family law is my main practice area, I have always enjoyed contracts and I have a good understanding of the law regarding a breach of contract, what types of damages are recoverable, and the possible defenses to the claim.

For those cases that I know I can’t or don’t want to take, I make it a point to have a list of attorneys in each potential area of practice and their contact information.  If you have a good network of capable attorneys, you can still be a valuable resource to your potential client by referring them to someone who will take their case.  This prevents the client from having to dial random attorneys until they find one qualified to take their case, and it's also a great way to build referral relationships, earning you more business in the long-run.

How much time is the case going to take to complete?

Some cases, such as an uncontested divorce may only require an hour or two of work. Other cases, like a contested divorce, may go on for years.  Depending on your client (and sometimes this may be hard to determine from just one phone call), you may spend several hours a month just discussing the case with the client and acting in the role of advisor and counselor.  While it is difficult to know exactly how long a case will take and whether it will likely settle, you should have a fairly good idea of what you are getting yourself into before you make the decision to take a new case. You don’t want to put yourself in the position of being so busy that you miss deadlines or don’t have the time to adequately prepare.

What costs will be involved in taking the case?

Aside from your time, a case may have certain costs that must be paid out of pocket. If taking a case on contingency, the attorney may front all the costs on the client’s behalf with the hopes of being reimbursed if successful. Getting a cost retainer up-front from the client is common for divorces, dependency cases, or any other case where the client pays an hourly fee.  Some common costs that attorneys incur during the course of litigation are: service of process, filing fees, court reporters, copies, etc.  No matter who is paying for costs, you should have a good idea upfront of what costs will be involved in litigating the potential case.

What are the chances my client will be successful in their case?

Some cases are a long shot, some are a slam-dunk, and many others sit comfortably amidst the grey area in the middle. Knowing the law and the specific facts of your potential client’s case are crucial to determining how likely your client is to prevail. A client may have had something bad happen to them, but there doesn’t seem to be any plausible remedy available to right the wrong. Other times a client may have something seemingly minor happen to them, such as receiving phone calls from a creditor, but those phone calls might have been made in direct violation of the Florida Consumer Collection Practices Act (FCCPA) making the creditor liable for attorney’s fees.  There is a saying in the legal field, “If the facts are on your side, argue the facts; if the law is on your side, argue the law.” Ideally, a good case will have good facts that fit nicely into easily determinable law with little questions to be answered. More likely though, you will have a case that you feel should win but is by no means certain.

Should I take the case on contingency or charge an hourly fee?

The better the case, the more appealing it may be to take the case on a contingency basis. When taking a case on contingency, there is always the inherent risk of losing and getting nothing in the end (not even all those costs you’ve shelled out over the last couple years). So, why would anyone ever take a case on a contingency basis in the first place?  If successful in a claim, attorney’s fees may be awarded to “the prevailing party” by statute or agreement.  These types of provisions are common in situations such as consumer protection matters or contract disputes.  Even when attorney’s fees are not awarded, there may be enough at stake to take the risk for a chance at sharing in the recovery of damages. Without a contingency option, a client may decide not to pursue a claim because they are only out a few hundred dollars, and litigating the case would cost thousands of dollars in hourly attorney’s fees. By taking a case on contingency, the client can pursue a case they would not have otherwise considered. In these instances, the attorney better understands the likelihood of success and therefore they are willing to bear most of the risk of litigation.

If you have never accepted a contingency case, be sure to do your homework to comply with rules specific to contingency cases. In Florida, this entails things like including specific language in your retainer agreement and having your client sign the Statement of Clients’ Rights in Contingency Fee Cases.

All of these considerations (and others) must be given weight when deciding whether to take a new case. It’s not an exact science, but the more knowledgeable you become, the easier it gets.  It can be difficult to know what hidden costs may lurk, or which facts may be problematic, especially in an area of law you have little experience with.  When confronted with a new case that leaves you a little confused, take some time to consider all the factors and maybe even reach out to a more senior attorney who knows what to watch out for. It’s hard to turn down a case, but taking on a case you had no business dealing with in the first place can prove to be more detrimental than beneficial.

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