Not Happy With How Your Lawsuit is Progressing?

In Litigation & Lawsuits by Larry DonahueLeave a Comment

Every week, I talk to at least one new client lead who wants to switch attorneys. They call us, explaining they are not happy with the progress of their lawsuit, and want to hire a new attorney or law firm to get involved.

Does this sound like you, or afraid this could happen to you?

Most of the time, after talking to such people, I learn their dissatisfaction with their lawsuit stems from their misunderstanding about the legal process or how lawsuits work.

This means, of course, if such a client lead were to fire their existing attorney and switch to us, we’ll probably leave them less-than-satisfied later on down the road.

Why is this?

The Hard-Truth About Lawsuits

At the most basic level, a lawsuit is where you present your case to a trier-of-fact asking for a favorable opinion to do something, where that trier-of-fact evaluates your evidence against the other party’s evidence, and makes a decision.

That trier-of-fact is busy with many other cases. Therefore, there is a docket and schedule that must be followed. Deadlines to meet, and timeframes to wait while the other side works on their deadlines.

The trier-of-fact doesn’t know you any better than the other party. They don’t know that your set of facts is the correct set of facts, and they certainly don’t have the patience to read through 1,000 different texts over the span of 2 years. They don’t have the technical expertise to understand the proper way to repair a vehicle, perform a surgery, conduct a business transaction, or how to read financial documents.

This means there could be much work (and expense) doing what’s called “discovery”. This is where you obtain all the evidence and information you need from the other party, as well as pull together your facts and information (to give to the other party), synthesize, summarize and perhaps involve an expert witness to evaluate everything and help explain it to the trier-of-fact.

Lawsuits are governed by the law and by the Rules of Civil Procedure (the “Rules”), which all can vary depending on whether you’re in federal versus state court, the state you’re in, the type of court (i.e. bankruptcy versus civil versus metro-district (or small claims)), the county and the locality.

Because of this, the lawyers will interact with the court throughout the lawsuit, trying to use the law and/or the Rules to help force compliance from the other side (if they are doing something they shouldn’t, or not doing something they should), or to use the law or the Rules to their advantage (i.e. seeking dismissal for some legal reason).

In short, a lawsuit is a lot of work, that takes a lot of time, and is very uncertain. The other side is working against you, so you’re not in control of the timelines, costs or outcome.

How Lawyers Deal with Lawsuits

Given what I said above, you can imagine different strategies to a particular lawsuit. Let me give you two:

Super Aggressive. This is where a legal team or lawyer is submitting many motions to the court, trying to keep the other side off-balance and hopefully exhausting their financial or emotional capacity to “stay in the fight.” This is very expensive, as you might imagine, for both sides of litigation but especially the side being super aggressive. This involves a lot of research, a lot of writing, attending hearings, etc, trying to keep up the pace and keep the other side on the defensive. If the other side is aggressive, it takes even more work to be more aggressive to keep them on the defensive. It’s uncertain whether a super aggressive approach speeds up or slows down the lawsuit. With more work, more hearings and more deadlines, that all takes more time; but if you manage to exhaust the other side, you may reach settlement more quickly and end the lawsuit. But, if you cannot exhaust the other side, then you’ll almost certainly prolong the lawsuit and spend an outrageous amount of money.

Responsive, Less Aggressive. This is where a legal team or lawyer isn’t acting in a super aggressive manner, and instead doing what’s necessary to move the lawsuit forward without trying to put the other side off-balance and/or continually on the defensive. The advantage here is that such an approach is significantly less expensive, but the disadvantage is it looks like you’re on the defensive all the time. Similarly to the super aggressive strategy, it’s uncertain whether a responsive strategy speeds up or slows down the lawsuit. You don’t spend as much time filing motions and trying to keep the other side on the defensive, which significantly reduces the timeframes, but you are less apt to exhaust the other side, keeping them in the fight longer and possibly prolonging the time to a possible settlement.

What is the right strategy? It’s hard to say, and greatly depends on a lot of issues, including your ability for expensive litigation and the other side’s financial and emotional capacity to “stay in the fight.”

Typically, if your funds are limited, it’s best if you have a responsive strategy, which can help reduce the costs of litigation and help you stay in the fight longer.

There’s another side to this coin, by the way, and that has to deal with lawyer communications. Again, let me highlight two scenarios:

Very Communicative. Most clients prefer attorneys who are very communicative about status, next steps and more. However, most clients don’t like paying legal bills either. When you talk to your lawyer, you’re generally paying for that time. Therefore, a very communicative attorney is going to cost you more money, potentially a lot of money. Remember that most attorneys are working on many cases, so if you expect your attorney to be on top of all the facts and circumstances, whenever you call him or her, then expect to pay more to have that attorney be constantly reviewing your case, talking to the experts, reviewing the evidence and more.

Less Communicative. This is where attorneys may communicate less than you want, and where they may not always be up on the current status of your case. This doesn’t mean they aren’t prepared or care very much about you and the outcome of your case, but it means they are being careful with their time (and your legal dollars), and diving in and communicating with you when necessary or appropriate. This will almost always save you a lot of money, but it can also be frustrating if you aren’t experiencing the level of communications that you need.

In general, you should communicate your expectations with your attorney, and you should expect your attorney to meet your expectations. If your attorney cannot meet your expectations, then it may be time to switch attorneys — assuming your expectations are aligned with the issues I raised above.

Aligning Your Expectations with the Hard-Truth About Lawsuits

What is important, is to align your expectations with the strategies I mentioned above. If your goal is to minimize expense, then hiring a super-aggressive attorney who is very communicative is going to be the wrong attorney for you.

When I talk to client leads who are not happy with their current attorney, it’s more often than not, that their dissatisfaction with their lawsuit stems from their misunderstanding about the legal process or how lawsuits work.

Typically, their dissatisfaction rests with a combination of both the expense, and either the aggressiveness and/or the communications. They are therefore typically seeking a new attorney who will simultaneously be more aggressive and/or more communicative, yet less expensive.

At Business Law Southwest, we love being super aggressive and very communicative, but we find most clients cannot afford it. Therefore, the magic sauce is finding the right balance to meet our clients’ needs and expectations.

Are we successful in meeting the right balance every time? I’d be lying to you if I said we did, but we do try.

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