Surprises are foolish things. The pleasure is not enhanced, and the inconvenience is often considerable.

—Jane Austen

When clients hire law firms to defend them in litigation, they are looking for many things. They want sound advice, they want effective advocacy on their behalf, they want to win, and they want all of this done for as little money as possible. But perhaps more important than all of this is the client’s desire not to be surprised. Indeed, there is no surer way to find yourself on the wrong side of a fee dispute or legal malpractice claim than to present a client with an unwelcome surprise. Thus, avoiding surprise—and, in particular, unpleasant surprise—is a prerequisite to keeping clients happy and, consequently, to keeping clients. What follows is a primer on how to avoid some of litigation’s nastier surprises.

Warning of Risks

Early on, a client may ask the lawyer for an assessment of the case. How the lawyer answers that question can set the tone for the entire litigation. Most lawyers know that, Chick Hearn aside, words like “slam dunk” are not particularly helpful or, frankly, descriptive of any litigation in which most of us ever have been involved. Even the most frivolous lawsuits have some risk, given the prospects of a bored jury deciding complex issues of contract consideration, patent invalidity, or market share. Nor can or should a lawyer ever guarantee that a particular motion is going to be successful, no matter how optimistic the lawyer may be. By the same token, telling a client that it will take a miracle to prevail—in other words, setting yourself up to be a hero—is not particularly helpful to a client either. Instead, giving as accurate an assessment as possible, with all appropriate caveats, is vital.

Failure to warn a client of the risks and likely downside of a litigation matter is a recipe for dispute down the line. With adequate warning, the client can make the proper decisions and preparations. For instance, many clients—including public company clients—must set a litigation reserve for their potential future liabilities. Even if the client does not expressly ask the lawyer to advise on the setting of that reserve, the client likely will base its reserve at least in part on its lawyer’s advice about the potential risks and exposure. If the litigation reserve is not accurate and reasonable, it will make it more difficult for the client to settle when the time is right to do so.

Similarly, some cases warrant early consideration of settlement, and clients often rely on their lawyer to assess the case so they can decide if and when settlement is appropriate. If a case should settle early for a payment close to $500,000, but the lawyer does not properly advise the client, the client will be none too pleased when it ends up paying $500,000 to settle a year later, after spending $1 million in legal fees. Of course, this very scenario may be unavoidable because many relevant facts often are not fully developed early in the case. For cases that scream “trouble” from the inception, however, a lawyer should tell the client just that, rather than waiting and surprising the client with the bad news months or even years later.

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