Be Mindful of Your Client's Personal Story

As published in the Winter 2007 edition of the American Association for Justice Newsletter

Most of us are fortunate to have received an excellent legal education. However, it is the rare law school that prepares its students to assess the merits of a case in the context of civil litigation. Case evaluation is foreign to the methodology of teaching law which studies the nuances of appellate decisions. A case, particularly where the facts are closely contested, can boil down to the relative strengths, or liability, of the parties. I am convinced that success can depend upon the plaintiff’s counsel developing the biography or story of his or her client.

COMPELLING PERSONAL HISTORIES EMERGE

Recently, I spent several hours exploring the background of one of my clients. It turns out that she immigrated to this country 30 years ago from a poor Central American country and was unable to speak English. Nevertheless, in the ensuing 10 years she attained four college and post-graduate degrees. Not surprisingly, her work history for the local school system was impressive. I summarized her biography at a mediation for her case. I may have spent as much time on her personal story as I did on the liability and damages. The mediator, defense attorney, and claims adjuster were impressed. The case resolved for more than full value. Understandably, the mission of a law school education is to cause its students “to think like a lawyer” and to impart concepts of law. Law school education, however, fails to emphasize interpersonal skill on our part or on our clients’ part. Results in the courtroom often depend upon more than principles of law, liability, or damages. This lesson is especially true where jury verdicts often seem based upon empathy or intangible factors, despite instructions from judges that sympathy for either side is improper. Of course, the vast majority of personal injury cases are resolved prior to a jury rendering a verdict. Nevertheless, personal stories remain significant. We represent our clients at depositions and mediations and their stories come into play. Surely, the defense assesses the plaintiff’s strengths and so advises the insurer.

STORIES IN INTERROGATORIES

I often have wondered why plaintiff’s attorneys in handling serious cases are so brief in answering interrogatories. The thought may be that if the answer is extensive, the client could be contradicted. If there is a story to tell, be it the personal background or the way in which the injury has affected the plaintiff, that message should be conveyed. A three-line answer to some of those questions fails to relay the message. Without delving into more war stories, it is crucial to accentuate the positive in our cases while privately noting the negatives. In the particular case of my client with the four degrees, it was after learning her story that I fully appreciated her biography and the message I could send to the other side and to the neutral mediator. We all know that many factors are considered in calculating a case’s value. In fact, we must be mindful of those factors when deciding whether to accept a case, put it in suit, or incur significant costs when prosecuting the case. After years of practice, some of us like to feel that we have developed a sense of the circumstances that constitute a “good case.” Others may feel that they have this ability intuitively. However, you have come into that knowledge – a successful practice depends upon your use of that sixth sense. I seek only to alert the readers to an often overlooked area, the client’s story.

Robert I. Feinberg is a member of the Sole Practitioner & Small Firm Section.
Feinberg & Alban,
141 Tremont St., Boston, MA 02111,
T: 617-232-5950617.232.5950[/ln], 1.800.479.9991,
[email protected]