Trial: Fun for me (for you maybe not so much)

Posted Saturday, September 5th, 2015 by Gregory Forman
Filed under Attorney-Client Relations, Of Interest to Family Court Litigants, South Carolina Specific

When I counsel clients that they should take a settlement offer I am often met with the response, “I want to go to trial.” Many other attorneys relate similar tales of clients rejecting suggestions of settlement and pushing for their “day in court.” If one’s attorney has little, or mostly negative, trial experience perhaps a client is best off rejecting such counsel (of course such clients might have been better off seeking counsel with some positive trial experience). However when an experienced and good trial attorney counsels a client to take the settlement offer, the client really should listen. Such advice comes from an attorney placing his or her duties as a fiduciary and a professional above personal interest.

What your settlement-counseling attorney probably won’t state is that trial is both lucrative and fun–if you’re the attorney. For the client, not so much. Trial means big billing days for the attorney. Trial preparation should consume a great deal of time: probably one to three hours of preparation for each hour of trial. Trial days are among my best billing days. Whereas in a typical day I might work on myriad small tasks and bill each client for only the time spent on a task specific to that client’s case, for trial days the client typically gets billed for all time from when I leave for court to when I return from court. Fifteen minute recess so the court reporter can take a bathroom break: the client is getting billed for that time. When I am at trial I am getting well paid. And who is initially paying for that? The client.

In family court, clients often expect that the opposing party will be required to reimburse 100% of the attorney’s fees and costs. With the occasional exception of contempt actions, this is almost never the case. Further the client will be expected to pay my fee up-front and will get reimbursed if and when the other party pays the ordered fees. Moreover opposing parties retain the right to file motions to reconsider and appeals, which add to my clients’ fees and delay the reimbursement of fees. A client unconcerned about trial fees under the belief that the opposing party will be ordered to reimburse all fees should be disabused of that delusion.

Further, for attorneys who enjoy trial (as I do), trial is fun…really, really fun. Like one-of-my-top-five-favorite-activities fun. Trial is what we fantasized about before applying to law school. No one attends law school excited over the prospect of answering discovery, taking witness statements, writing legal briefs, or reviewing hundreds of pages of documents trying to find one or two useful pieces of information. Trial requires attorneys to “script” the questions to ask each witness, which is a more creative and imaginative task than most of us are ever called-upon to do at work.

Trial is exciting, energizing, and provides the illusion of great power: you can ask people questions and they can be forced to answer them. Imagine you had this power over your spouse or your children: I bet you’ve already thought about some questions you’d love to ask. Who wouldn’t occasionally like that power?

If I could try a case every four weeks I’d be ecstatic (no more than every fourth week so I can have one week for trial, one week for trial prep, and two weeks to catch up on my other work). Instead, I’m lucky if I have three multi-day trials in a year.

However for the client, trial is extremely stressful. If the attorney has the power at trial to ask questions and force witnesses to answer, the client is in the awkward position of being forced to answer uncomfortable questions. Most humans try to avoid feeling judged, but that is explicitly what is happening during a trial: the client is being judged. By an actual judge. Who may not be very tactful in his or her written judgment.

Sometimes the client will achieve total vindication at trial–that is the fantasy that compels clients to demand a trial. More often, the judge will find nice things and negative things to write about each party. It can be painful for a client to read that he or she wasn’t completely credible or that the judge found his or her behavior wasn’t always proper. Settling a case is a way to avoid that uncomfortable experience.

Finally, trial has long-term, sometimes permanent, consequences for the client but minimal consequences for the attorney. While I am happy to win and disappointed to lose, I sleep in my own bed and go back to my office either way. It’s the client who has to live with the resulting judgment. The client can seek reconsideration or appeal but that is a slow and expensive process (though it does mean more money for the attorney) and is rarely successful. The certainty and control of a settlement is a benefit the trial-seeking client may not have considered.

The rare cases I try are those where my client has rejected my advice to settle or where the opposing party will not make a proposal within the bounds of reasonableness. “[A]n attorney-client relationship is, by its very nature, a fiduciary relationship.” Spence v. Wingate, 395 S.C. 148, 716 S.E.2d 920, 926 (2011). When an attorney counsels a client to take a settlement offer it is because that attorney is placing his or her duties as a professional and a fiduciary over his or her interests as a businessperson. The client pushing to reject an attorney’s advice to take a settlement offer should be aware of these ramifications before rejecting it completely.