This question is a followup on my earlier one.

Suppose plaintiff is suing for compensation and/or damages in a tort case.

I would guess that the client would have the greater say on strategic matters. For instance, whether to settle or to continue litigation. Probably on which, of several possible defendants, to sue.

On the other hand, I would guess that the lawyer would have the final say on day to day operating decisions, which motions to file, which procedures to follow, what level of discovery to pursue, etc. The client usually doesn't have the expertise to make such decisions, and even if s/he does, "a doctor or lawyer who treats themselves has a fool for a client."

Are the above distinctions more or less the correct ones? Is it true that the client mostly dictates strategy/priorities, while the lawyer has most of the say on tactics?


3 Answers 3


The answers to your questions are, generally speaking, contained in the Model Rules of Professional Conduct. It's important to note these aren't mandatory across the country, although some states have implemented Rules that closely track them while others have their own Rules.

Start with Rule 1(e), which defines informed consent as

the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct

Next up is Rule 1.2, Scope of Representation & Allocation of Authority Between Client & Lawyer. Subject to two exceptions,

a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued.

The two exceptions are in Rule 1.2(c) and 1.2(d): an attorney can limit the scope of representation with a specific client after obtaining the client's informed consent and an attorney is forbidden from counseling a client to engage or assist him in engaging in conduct the attorney knows to be illegal/fraudulent.

Finally, as it was mentioned in 1.2, we turn to Rule 1.4, Communications.

(a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules;

(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;

(3) keep the client reasonably informed about the status of the matter;

(4) promptly comply with reasonable requests for information; and

(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

(emphasis added)

Your question was

Are the above distinctions more or less the correct ones?

The answer is yes and no. As to the objective of the representation, the client makes that decision. How to arrive at that outcome is not as cut-and-dry. From the language in the above Rules, there is not one party or the other who has the "final say." (I say this notwithstanding the fact that, because the client can't go file something on his own, technically the lawyer has final say as he or she is the one who must file a document with the court). Major decisions in the litigation have to be explained to the client and, after that, the client must give consent approving the decision.

How does this work in real life? Frankly, it will depend on the client and the lawyer.

And don't worry, the phrase "a doctor or lawyer who treats themselves has a fool for a client" is not only apt, it's common sense. When a person is involved in a conflict, their point of view is skewed in their favor and to represent themselves is risk their blindspots leading to unnecessary potential pitfalls throughout the case.


He who pays the piper calls the tune

Your lawyer is at your service. Unless you think they will pull out, you can ask them to do all sorts of stuff: sue or settle, file motions, stand on one foot, make you a cup of coffee etc. They may nicely ask to clarify whether you are sure you want them to do what you ask them to, explain you the pros/cons/possible consequences and ask again but, ultimately, you get to call all shots.

The only law around that is that your lawyer must either follow your instructions (whether those are tactics, strategy, priorities or just some fun) or stop being your lawyer.


Are the above distinctions more or less the correct ones?

Not really. First, the issue of "whether to settle or to continue litigation" generally is not about strategy or tactics. Instead, that is more of a potentially final decision a client is supposed to make on the basis of whether a foreseeable outcome compensates the injuries at issue. The lawyer is supposed to explain to the client the pros and cons of each option, at which point the client can make an informed decision the lawyer has to follow.

Second, the issue of "which, of several defendants, to sue" is not entirely a matter of strategy and tactics. The plaintiff might have personal reasons, unrelated to litigation strategy/tactics, for deciding not to sue one or more of the wrongdoers. The lawyer cannot reasonably impose himself on a plaintiff who knows what he wants. That being said, a dishonest or vexatious lawyer could influence and mislead the plaintiff's decision on who to sue even if the lawyer knows that suing those persons is futile or wrong.

Third, "day to day operating decisions" can be agreed upon in the contract or relation between a client and his attorney. Obviously a plaintiff who has considerable background in law and litigation has more elements to scrutinize the lawyer's litigation plan and suggest a different approach. On the other hand, a lawyer can always withdraw from the case if there is significant disagreement with his client on how to litigate the case.

And fourth, the phrase "a doctor or lawyer who treats themselves has a fool for a client" is rather the most typical attempt to intimidate or ridicule anyone whose knowledge of legal matters diminishes the "added value" of an attorney, since people's generalized knowledge of law & litigation threatens lawyers' profitable business of litigation.

Furthermore, equating a physician (or "doctor") with a lawyer is a laughable attempt to picture the latter as having a higher "status" of specialization. A physician's studies are vastly more complex because both curriculum and profession encompass chemistry, physics, biology, statistics, and so forth. Each one of such disciplines span various branches, lexicons, nomenclatures, etc., which the physician ought to handle and communicate with proficiency. By contrast, laws are written in language that anyone with intermediate levels of literacy can understand, most of laws being accessible online and for free without the need for specialized equipment to consult them or to take legal action. In fact, that accessibility to laws is indispensable for civilians' compliance therewith.

EDA: Per OP's edit ...

Is it true that the client mostly dictates strategy/priorities, while the lawyer has most of the say on tactics?

This might be a matter of ambiguous semantics, but here you appear to be conflating two different concepts: strategy and priorities.

A party's priorities are about what he ultimately wants, whereas strategies and tactics are about how to achieve those priorities. Or perhaps by priorities you mean the sequence of steps toward securing evidence for fact-finding, in which case that would certainly pertain to strategy.

Typically a lawyer has the freedom to discern the best way to achieve the client's priorities, but at all times the lawyer's strategies and tactics have to be centered on his client's priorities (or explain to the client why those priorities are unlawful or unrealistic). If the client insists on priorities that are unlawful or unrealistic, the lawyer can withdraw from the case even if only on grounds of refusing to contravene the rules of professional conduct.

  • 1
    Whether or not to settle vs. pursue litigation is without question a matter of strategy.
    – A.fm.
    Commented Jun 27, 2020 at 3:04
  • @A.fm. I am not going to speculate on why you think that way, but settling means that the parties are satisfied with a specific set of conditions and therefore they don't see the point of additional litigation. This implies that strategies and tactics are no longer needed. Although one could schedule a settlement meeting with hopes that the adversary will inadvertently reveal some vulnerability, that misuse of settlement meeting/conference is naive, rather wasteful, and/or vexatious. Commented Jun 27, 2020 at 11:22
  • 1
    I think that way because the settle vs. litigate decision is necessarily one of strategy. "settling means that the parties are satisfied" Sometimes it means that. Many other times it means after considering all aspects of the case, the cost and duration of litigation, the potential of perhaps embarrassing conduct revealed in discovery, etc., one or both parties have decided settling is the wiser choice. Sometimes wiser choice ≠ being satisfied. "This implies that strategies and tactics are no longer needed" This is true after the settlement agreement is signed by both parties. Not before.
    – A.fm.
    Commented Jun 27, 2020 at 20:47
  • 1
    You’re making a distinction for no reason. Whether or not it is a “priority” does not make it either strategic or not. It should go without saying that the strategy between the lawyer and the client is created to bring the client’s “priorities” to fruition. The consideration of the discovery process as well as the other factors mentioned are, of course, legal strategy. Re: absence of a signed settlement, you’re getting confused. The signed doc doesn’t make anything more strategic lol. Rather, you’re only done strategizing once it is signed. Before then, anything can change.
    – A.fm.
    Commented Jun 27, 2020 at 23:12
  • 1
    Lol @ trivializing. I suppose trial attorneys in general trivialize their own "methods and aspects" because they generally consider it part of strategy. I agree that not every decision toward delivering results for the client is not part of a strategy; but more often than not, whether to settle indeed is. You are in fact trivializing the issue by presenting your opinions as facts.
    – A.fm.
    Commented Jun 28, 2020 at 11:15

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