If a person is thinking of taking legal action, if they consult with a lawyer do lawyers ever advise "your chances of winning are so low you shouldn't bother pursuing this"? On one hand it may be good advice, but wouldn't that be counter productive to the lawyers business? Presumably the lawyers want a client so can it be a conflict of interest? Can it somehow be guarded against?
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4 Answers
Yes lawyers do this. quite often in fact.
There are professional and publicity reasons of course, that should suffice to not give bad advice and harm your career.
But there is also a legal reason. Lawyers are responsible for the advice they give (as most professionals). If they give bad advice, they may be liable for damages!
do lawyers ever advise "your chances of winning are so low you shouldn't bother pursuing this"?
Yes, it happens. But the frequency with which that happens should not lead to the presumption that people in general are exempt from fraud by their own lawyer.
Many, many lawyers take cases despite knowing those are devoid of legal merit. Some of these lawyers end up in a list of vexatious litigants, like this list from Texas courts. Although such lists primarily reflect the attorneys' hindrance to the court system, these also suggests that their clients' bills are inflated as a result of lawyer's vexatious acts.
Furthermore, lists of vexatious litigants cannot capture all the forms in which clients might become victims of lawyers' greed. For instance, this report denounces attorneys' habit to drag cases for as long as it takes them to deplete their clients' savings.
Can it somehow be guarded against?
Yes, through knowledge, most of which is available online, in people's own language, and for free. Unfortunately people underestimate the importance of acquainting themselves with legal concepts before they consult an attorney.
Without an elementary background in law, the potential client is more susceptible to intimidation by a lawyer's incomprehensible words (be it that the lawyer deliberately speaks too fast, uses needlessly sophisticated terms, etc.), more vulnerable to the lawyer's misleading oversimplification of the client's matter, or unable to discern that the lawyer's answers are too ambiguous or evasive.
answered Oct 2, 2020 at 12:13
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Knowledge of the law, or, at the least, the importance of acquainting one'self with legal concepts before consulting an attorney certainly seems a resonable idea. To pretend to be ignorant of the law, strikes me as disingenious, if this is to test the other's honesty. Dec 21, 2021 at 21:21
Most legal work is not dispute resolution
Sure, there are specialist litigators (called barristers in common-law jurisdictions outside the US) but most legal work is conveyancing, wills & probate, estate planning, businesses structure, contract drafting and advice, family law, criminal law and telling you why civil litigation is a bad idea.
Most dispute resolution is not litigation
99.99% of disputes are resolved by a negotiated compromise or by one party putting up with the status quo. Most of the rest are resolved by a) kicking it up the chain of command until the compromise happens b) alternative dispute resolution in the form of mediation, conciliation, expert determination or arbitration or c) taking litigation to the steps of the courthouse and then settling.
Only people with more principle than brains goes through to litigation.
If a man stopped me in the street and demanded of me my watch, I should refuse to give it to him. If he threatened to take it by force, I feel I should, though not a fighting man, do my best to protect it. If, on the other hand, he should assert his intention of trying to obtain it by means of an action in any court of law, I should take it out of my pocket and hand it to him, and think I had got off cheaply.
A lawyer should tell you what you legal rights (probably) are
They cannot tell you if they are worth pursuing or defending because that’s a commercial and emotional decision - not a legal one.
They can also be wrong - not a criticism: so can your accountant, engineer or plumber. However, your lawyer is often dealing with more ambiguity.
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Only people with more principle than brains goes through to litigation. this deserves to be in a frame on the wall lol Oct 3, 2020 at 13:56
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@Greendrake it is overstating the case - large corporations can sensibly pursue litigation as part of a legitimate business strategy but if you aren’t strategic about it and know exactly why this lawsuit and what you hope to gain and are willing to lose, then stay well away. I’ll see if I can find Jerome K Jerome’s quote– Dale M ♦Oct 3, 2020 at 20:59
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From the comment I take it that good reasons to litigate are to seek: "b) alternative dispute resolution or c) taking litigation to the steps of the courthouse and then settling." But how can either of those be acieved without qa credible threat to sue? Dec 21, 2021 at 21:07
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@MariaAlaniz no, those are lousy reasons to litigate. You litigate because a) you have a genuine chance at prevailing and b) litigation is better than all your other options. Litigation can be crossing the Rubicon and can foreclose negotiated or other forms of ADR resolutions. Litigation should be considered part of the dispute resolution arsenal the way that nuclear weapons are part of the military arsenal - something to be used very cautiously.– Dale M ♦Dec 21, 2021 at 21:58
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@Dale M To be clear, we do have a genuine chance at prevailing if our case would come before a judge. Our adversary will not negotiate nor curtail their illegal practices (very harmful to our interests) until a piece of paper is presented to them. We have repeatedly offered to dialog, however our tormentor plainly believes that we will never be able to achieve a hearing of our complaint. Dec 22, 2021 at 19:53
A wants B to pay him some money, B refuses. A goes to a lawyer, wanting to take the matter to court.
The lawyer should have some idea what are the chances of winning, what is the cost, what you would expect to gain, and importantly what are your chances to get money at lower cost. For example, a convincing letter from the lawyer might change B’s mind at much lower cost.
So if it is better overall to not go to court, a good lawyer will recommend to take no legal action. If the lawyer thinks the action is vexatious they may even refuse to take the case. And you can go against the lawyers advice. If you hate B, and you don’t mind to pay $1000 to make B pay $200, your lawyer will likely do it.
answered Oct 3, 2020 at 9:24
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you don’t mind to pay $1000 to make B pay $200 especially if the court orders B to pay the $1000 costs too. Oct 3, 2020 at 13:55
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@Greendrake, in the USA it’s highly unlikely. In Germany, what you can get paid for cost is limited. Oct 3, 2020 at 19:17