This is part 2 of a 2 part post discussing expense, time and overall experience one faces during litigation. You can read part 1 here.

Likelihood of Success
The next important factor in deciding whether to go forward with litigation is the likelihood that a client’s claims will succeed.  Commonly, clients who are infrequent litigants believe that the moral “rightness” of their position and his or her opinion that the other party is a scoundrel is so plainly obvious that it will immediately be recognized by a Judge, who will cut through all of the usual procedural hurdles, Rules of Evidence, and legal technicalities to summarily enter judgment in his or her favor, chastising the other party in the process.  The client may have gotten this idea from television – which is the only place that you will see this happen.  When I counsel a client considering pursuing a claim in litigation, it is very important that we have a dispassionate review of the relevant evidence in the client’s possession or which the client believes can be acquired in Discovery in order to assess whether the client’s claims can actually be proven.  All of the time and expense in pursuing a claim will be for naught if there is a conspicuous gap in evidence necessary to prove a claim – making litigation a very bad economic decision.  

“Collectability” of the Judgment
The final factor that I counsel clients to consider when making the decision whether or not to pursue litigation is to try to estimate the “collectability” of a judgment against a potential defendant.  There are no longer “debtors prisons” in the United States, and therefore the ability to collect a judgment is contingent upon a potential defendant’s financial health, assets, and applicable insurance policies.  A Ten Million Dollar judgment against a penniless debtor is worth nothing – I like to counsel my clients to think of recovery in terms of “real dollars,” as opposed to the amount of a judgment which may not be converted into money in the client’s hand.  If a client is considering suing a business likely to stop operating or an individual on the brink of bankruptcy, it would be wise to consider these facts in making the decision to go forward.     

Some Final Thoughts
I find that good client service requires a candid discussion of these factors when deciding whether to litigate a claim as an economic decision, rather than after the client has spent significant sums in fees and costs.  It is the duty of a lawyer to counsel the client with the client’s economic interests in mind.  If a lawyer does not discuss the above factors with a client before counseling the client to go forward with litigating a claim, the client would be right to be a bit skeptical and wonder if the lawyer has not let his or her own need for business and fees to override the duty to be candid with the client.  Pursuing the litigation of a claim with little or no prospect of recovery of “real Dollars” can compound the client’s losses and be economically disastrous for the client.  While there are no guarantees in the law, in my experience keeping the client’s economic interests in the forefront and being honest with the client – and sometimes telling the client what he or she does not want to hear – yields more satisfied clients in the end and fosters an environment of trust and confidence between lawyer and client.