Often a defense lawyer will call in their client(s), take down their “story,” receive the documents they hand over, treat it all as gospel, and then defend based thereon. This is negligent. You need to put your “Plaintiff’s hat” on and try to poke holes through their story and see the case from the Plaintiff’s angle.
Read more: The Importance of Early Leverage
Look for documents not being turned over or at the documents given to you and ascertain whether they are genuine or in any way altered or manufactured. It is important to do this. If you do not, you may be marching your client into a buzz saw and a huge jury verdict.
This is not easily done if you are billing hourly, as the client may balk at you questioning their story. If they are an important institutional client, this may be even harder. But, we must all remember, we are not potted plants. We owe it to our clients to play the devil’s advocate and to try to see the case from the eyes of our adversary. In doing so, we, as defense lawyers, can then properly prepare our client and advise them as to settlement and whether even going to trial is advisable.
Keep in mind that the defendant may have wound up in their mess because they were not truthful. Further, they may have no ability to see their conduct as wrongful or their statements as untruthful. Clients, especially those that find themselves in litigation, can often shade the facts and see only one side of an issue.
I once had a client who was absolutely sure that certain information was not disclosed to her in dozens of meetings. She was so focused on the money lost that she could not recall any such disclosures. But, alas, in a deposition, the other side produced pages of notes from that meeting. An objective take on the client was that she had selective memory.
Defense attorneys are not hired to be cheerleaders for their clients or to act like parrots by repeating all the documents and stories given to them. We have independent, well-trained minds and typically we can be very surgical in using common sense and good detective work to unearth a weakness — even in our own case.
The client might be unhappy that you are not singing out of their songbook, but if you have the backbone to do the hard work up front and level with your client, they may well thank you when they come to realize the outcome at trial might have been far worse had they not settled.
So, let’s take the pompoms off, and first X-Ray our own client’s defense, and then proceed from there. It is hard being a defense counsel. The client comes in saying they did nothing wrong, and if you win, all you did was prove what they already knew (and in their mind charged too much, even though you did not).
If you lose in their mind it is your fault. Given that a defense lawyer may face a lose-lose with certain clients, it is even more critical to scrub the story being fed to you. Good luck.