Posted on Tuesday, December 24th, 2013 at 1:00 am
Good lawyers turn down good cases every day.
When a lawyer decides not to take a case, it doesn’t mean that the case doesn’t have merit. When a lawyer obtains a successful result on a case that another firm had declined, it doesn’t mean that the first firm was wrong. The decision about whether or not to represent a client is highly personal for most contingent fee lawyers, just as many clients may prefer one lawyer over another based on a feeling of comfort or confidence that’s difficult to articulate.
It’s well known that if you ask several different people who all witnessed an event to describe what they saw, they’ll all remember the event slightly differently. Some will remember details that others missed. Others will have different reactions to certain conduct, often based on their own life experiences. And, in essence, lawyers evaluating cases are like observers to an event. They will give varying weight to different factors, and the end result may be that one lawyer is very excited about pursuing a case that another lawyer turned down.
When we look at a case, we look at basic legal and economic elements: Was someone negligent? Did negligence cause an injury? Is there a reasonable likelihood that the claim will be successful, and that the recovery will be sufficient to cover the cost of bringing the case? As sympathetic as we may feel for a potential client’s situation, if we don’t feel we can achieve a significant benefit for the client, it doesn’t make sense to take the case.
But a firm’s experience with a particular type of case may allow it to understand potential areas of liability that may not be obvious to other firms. Particularly in medical malpractice cases, important information may be found in sources that aren’t part of the paper medical records: radiology studies, pathology specimens, videotapes of procedures, and computer documentation. Many lawyers are unaware that these sources of patient data exist, let alone how to go about finding and interpreting them. And this lack of knowledge may cause the firm to decline a case that has substantial merit.
The same principles apply to many other types of personal injury cases, where such electronic evidence as security videos, cell phone records, and data recorders may make it possible to prove a case that seems impossible on its face. And sometimes, it’s just a matter of visiting a scene to understand how an event happened, or talking to multiple witnesses in search of one who may have seen a crucial detail. Some firms are less apt to take cases that require this type of intensive investigation.
We frequently take cases that other firms have turned down. And I’m sure that other firms have taken cases we declined. Getting a second legal opinion, like second medical opinion, is often well worth the time and effort.