5 Things to Cover in Your Initial Case Assessment

When a prospective client brings you a case, they’ll want to know immediately what you think. It’s rarely possible or wise to give a firm, unqualified opinion as to the likelihood of success, or even to recommend a particular course of action at the first meeting. But you can and should outline possible results, risks, costs, timing, and alternatives.

1. What you see as the significant legal or factual issues in the case and which way the issues (or some of them) might be resolved, assuming the facts as stated.
2.   If litigation is undertaken, what you envision in terms of:

• Any steps that should be taken immediately (e.g., to prevent the running of a statutory deadline or to preserve evidence);
• Legal research and factual investigation;
• Possible pleadings (including cross-complaints), motions, and discovery the parties are likely to undertake;
• The litigation’s likely duration and expense; and
• The range of recovery or exposure for the client (if reasonably based on the information provided in the first interview and known to you).

3. Whether the claim or defense could be considered unmeritorious and could present ethical or other problems if vigorous litigation is undertaken. Explain the risk of a malicious prosecution claim.

4. The possibility of early settlement and the feasibility of a minimal cost approach to the litigation. Depending on the client’s legal sophistication, you might explain that:

• The vast majority of lawsuits don’t go to trial;
• The expenses of a lawsuit, if taken all the way to trial (or appeal), weighed against the potential outcome, may be prohibitive;
• Some cases settle quickly when concessions are made and a conciliatory stance is taken at the appropriate time; and
• The other parties may nonetheless undermine settlement efforts, escalate discovery, and force the case to trial.

5. The possibility of doing nothing or seeking to resolve the matter short of litigation if:

• Liability is weak or too expensive to prove, or the chance of recovering damages from the prospective defendant is slim; or
• Seeking a legal solution could escalate an already difficult situation, causing disclosure of confidential personal or business information, unflattering or intrusive publicity, or the setting of an adverse precedent arising from the case.

It may be a good idea to caution the client that litigation should be viewed as a last resort or the least desirable option, often taxing family or business resources emotionally and financially. Risks to be weighed include the possibility of having to pay the costs and fees of the adverse party if the suit is unsuccessful, or having to defend against a cross-complaint.

Most clients will appreciate, and some will expect, your written assessment of the issues and concerns outlined in this checklist within a reasonable time after you’re retained. Sophisticated clients may ask for an initial written analysis, plan, and proposal from you. Make sure that any written assessment includes a recitation of the pertinent facts known and assumed by you to be true.

For more on what to ask and tell during an initial interview with a prospective client, turn to CEB’s California Civil Procedure Before Trial, chapter 1.

Other CEBblog™ posts you may find useful:

• Nice to Meet You: Getting Your First Client Contact Right
• Tricky Business: Representing Clients with Adverse Interests
• When Settlement Pits Client Against Attorney
• Something to Chew on Before Biting into a Settlement

© The Regents of the University of California, 2014. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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Family Law Decisions in the News from JDSupra

Is it me or is this the hot topic in the Supreme Court.. ie Same Sex Couples?
So check out this, in the News summary from Today's email:
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Family Law   Legal intelligence from leading lawyers and law firms

Implications of the Supreme Court’s Windsor Decision on Estate Planning for Same-sex Couples   On June 26, 2013, the Supreme Court, in its decision in United States v. Windsor, overturned Section 3 of the Federal Defense of Marriage Act (“DOMA”). The Court ruled that the Federal government could not deny tax and other benefits to legally... By: Patterson Belknap Webb & Tyler LLP     Supreme Court Rulings Expand Gay Marriage Rights But Leave Ambiguities for Some   The U.S. Supreme Court’s dual decisions essentially invalidating the Defense of Marriage Act (DOMA) and California’s Proposition 8 brought jubilation to supporters of LGBT rights. Finally, state-sanctioned gay marriage had the green light in... By: Sedgwick LLP     Iowa Immigration Law Blog: Citizenship and Immigration Services Clarifies Immigration Benefits for Same-Sex Couples   As almost everyone now knows, on June 26, the U.S. Supreme Court overruled Section 3 of the Defense of Marriage Act (DOMA). On the immigration front, this means that a U.S. Citizen same-sex spouse who is married to a non-citizen may now petition for... By: Davis Brown Law Firm     Civility in the Practice of Law: How the Legal Profession Can Do Better   Civility is defined as something said or done in a formally polite way. In court, it is a professional obligation: ABA Model Rules, Rule of Professional Conduct 3.5 states that lawyers may not "engage in conduct intended to disrupt a tribunal," with... By: Law Offices of Marlo Van Oorschot, APLC     Children as Witnesses in a Domestic Violence Dispute   In M.J.T. v. A.V.B., the New Jersey Appellate Division overturned the trial court’s entry of a Final Restraining Order (“FRO”) against the defendant. The only witness to the alleged incident of domestic violence was the couple’s nine year old son.... By: Wilentz, Goldman & Spitzer P.A.     U.S. Immigration Benefits Available to Same-Sex Spouses   USCIS issues expanded and revised FAQ in the wake of the Supreme Court's decision overturning DOMA.... By: Morgan Lewis     Nonresident Alien Spouse Not Liable for Penalties   There are an unknown number of U.S. citizens married to nonresident aliens. Many of these taxpayers have filed joint income tax returns. Most are likely to have filed joint income tax returns (Form 1040) without having properly made and filed the... By: Sanford Millar     FEC Clarifies Rules to Allow Same-Sex Married Couples the Same Rights as Heterosexual Married Couples   In response to the Supreme Court’s ruling in June 2013 striking down provisions of the Defense of Marriage Act (DOMA), the Federal Election Commission (FEC) has clarified that same-sex married couples are entitled to the same rights under federal... By: Akin Gump Strauss Hauer & Feld LLP     Crowdfunding 101: What Is It? And Should I Be Excited About it? PART 1   Ever since the passage of the JOBS Act (the Jumpstart Our Business Startups Act), there’s been a lot of hype about crowdfunding. A lot of startups have built their entire business model on the assumed ability to use crowdfunding methods to raise... By: Chambliss, Bahner & Stophel, P.C.     FEC Issues Two Advisory Opinions in Light of US v. Windsor   Yesterday, the Federal Election Commission (“FEC”) became one of the first federal government agencies to take action in accordance with the Supreme Court’s decision in United States v. Windsor.... By: Genova Burns Giantomasi Webster LLC     Marriage and Capacity: The Mental Competence Needed To Tie (and Untie) the Knot   Roughly half of all marriages in the United States eventually end in divorce. The statistics are even bleaker in California, where the divorce rate hovers at around sixty percent. In light of these odds, getting married in this day and age (and in... By: Carr, McClellan, Ingersoll, Thompson & Horn -     Supreme Court DOMA Decision—Part II: Wage Overstatements and Tax Refunds   In part one of this two-part series, “Supreme Court DOMA Decision — Part I: Fringe Benefits and Other Tax Implications,” I reviewed the fringe benefit and tax implications of the United States v. Windsor decision.... By: Ogletree, Deakins, Nash, Smoak & Stewart,     Fenwick Employment Brief - July 2013: DOMA and Prop 8 Rulings Clear the Way for Same-Sex Marriages in California and Require Changes in Employee Benefits   In U.S. v. Windsor, the court struck down a portion of the federal Defense of Marriage Act (“DOMA”) as unconstitutional. DOMA, for purposes of federal tax and benefits laws, defined marriage as only between “one man and one woman.”... By: Fenwick & West LLP     Arizona Bankruptcy or Divorce – Which Comes First?   The number one stress factor cited in a majority of marriages is money. So it should come as no surprise that many divorces are either preceded by a bankruptcy or that one follows soon thereafter.... By: Rowley Chapman & Barney, Ltd.     Supreme Court DOMA Decision—Part I: Fringe Benefits and Other Tax Implications   On June 26, 2013, the Supreme Court of the United States issued its highly anticipated decision in United States v. Windsor, ruling that Section 3 of the federal Defense of Marriage Act (DOMA) is unconstitutional.... By: Ogletree, Deakins, Nash, Smoak & Stewart,     Same-Sex Marriage Cases—Planning Opportunities and Pitfalls   The Supreme Court of the United States recently held that the federal government must recognize same-sex marriages that are valid under state law, and effectively reinstated same-sex marriage in the state of California. However, many questions still... By: McDermott Will & Emery     7,000 Provisional Waiver Applications Received During the First Four Months of the Program   Since March 2013, certain immigrant visa applicants who are spouses, children and parents of U.S. citizens (immediate relatives) have been able to apply for provisional unlawful presence waivers (I-601A form) before they leave the United States.... By: Fowler White Boggs P.A.

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