One of the most important parts of being a litigator is evaluating cases honestly. It is not the easiest part of the job, but often it is one of the most important things you do. Looking at a set of facts, identifying the strengths and weaknesses, and giving a client your honest opinion about where things are likely headed is a critical part of what we are hired to do.
There is an old Kenny Rogers song, The Gambler, built around the idea that success often depends on knowing when to stay in the game and when it is time to walk away. While the song is about poker, I have always thought the lesson applies just as well to litigation.
As lawyers, it is essential that we evaluate cases honestly. Not just when a client first walks through the door, but throughout the life of the case.
The first evaluation usually happens during the initial consultation. A potential client comes in with a problem and wants to know whether they have a case. Sometimes the answer is relatively straightforward. Sometimes it is not.
Occasionally, you see a case with strong liability but very limited damages. The client may have been wronged, but there may not be enough at stake to justify the time, expense, and emotional investment of litigation. Other times, the damages are significant, but the evidence supporting liability is weak. In either situation, the conversation can be difficult. No one enjoys telling someone that the case they believe in is unlikely to produce the result they want.
But that is exactly why clients hire lawyers. They are not paying us to tell them what they want to hear. They are paying us to give them our honest assessment based on the facts and our experience.
That may mean explaining that what looks like a winning hand at first glance probably is not. Could you still win? Of course. Just like a poker player can occasionally win with a weak hand. But litigation is rarely about what is possible. It is about what is probable. Spending years and thousands of dollars chasing a result that is highly unlikely serves no one well.
Those conversations do not get easier simply because a case has already been filed.
Evaluating a case is not a one-time event. It is an ongoing process.
One of the realities of litigation is that the facts continue to develop. Documents get produced. Witnesses are deposed. Experts are retained. Sometimes that additional information strengthens your position. Sometimes it does not.
A case that looked very promising at the beginning may become significantly more challenging once all of the information is available. Likewise, a case that initially appeared difficult may become much stronger as the evidence develops. That is why evaluating a case is not a one-time event. It is an ongoing process.
In poker, the odds change as the cards are revealed. A hand that looks strong before the flop can suddenly become vulnerable. A player who is paying attention adjusts accordingly. Litigation is no different. Every deposition, document production, expert opinion, and court ruling gives you more information. Good lawyers use that information to continually reassess the risks and opportunities facing their clients.
As lawyers, we have an obligation to continuously reassess our cases and communicate those changes to our clients. If new information affects the likelihood of success, the client deserves to know. If the value of the case changes, the client deserves to know that too. The evaluation you gave six months ago may no longer be accurate today, and pretending otherwise does not help anyone.
These conversations can be uncomfortable. Clients are often emotionally invested in their cases. They may have spent months or even years believing in a particular outcome. Explaining why your assessment has changed requires honesty, patience, and sometimes delivering news that nobody wants to hear. But avoiding those conversations is far worse.
Litigation is expensive. It costs time, money, energy, and emotional bandwidth. Pursuing a case that no longer makes sense simply because no one wants to have a difficult conversation serves neither the client nor the lawyer.
Sometimes the most valuable thing a lawyer can do is explain that the risks outweigh the potential reward.
Of course, every case is ultimately the client’s decision. Our role is not to make decisions for them. Our role is to provide the best advice we can based on the information available. Sometimes, after understanding all the risks, a client decides to keep moving forward. Sometimes obtaining their day in court is important enough that the financial outcome is secondary.
Other times, the most valuable thing a lawyer can do is explain that the risks outweigh the potential reward. Not every case should be pursued to the finish line. Just because you still have chips left to play does not mean making another bet is the right decision.
Whether you practice on the plaintiff’s side or the defense side, one of the most important skills you can develop is the ability to continually evaluate a case and have honest conversations about what you find. Sometimes that evaluation leads you to push harder. Sometimes it leads you to recommend settlement. And sometimes it leads you to advise your client that it is time to fold the hand, save their resources, and walk away.
Those are not always the conversations clients want to hear.
But often they are the conversations clients need to hear.
