First you investigate

Posted Friday, May 20th, 2016 by Gregory Forman
Filed under Attorney-Client Relations, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

Clients, and the young attorneys I mentor, often ask me to render an opinion on their cases when their cases have just started. Specifically clients want opinions on their likelihood of achieving their goals, the length of time the case will take to complete, and the expected ultimate cost.

Given that these clients are often providing a substantial chuck of their savings as my retainer and are entrusting me matters of vital importance, these questions are understandable. But only a foolish attorney would answer them at the beginning of the case.

The problem with providing an answer is that, at the beginning of the case, one has only heard one side of the story–the client’s side. One doesn’t know whether the client’s story is accurate, what portions of the client’s story the opposing party disputes (even if that story is accurate), and what claims the other side will be making. All of these “known unknowns” impact one’s ability to predict results, fees (which, in contested family court cases are typically related to the amount of work and time involved), and time lines.

What I tell my clients, and these young attorneys, is “first you investigate.” Typically, I will send the client off to gather records, and perhaps submit to mental health or substance abuse testing, designed to bolster the client’s claims. One can use discovery to determine what facts the other side disputes and what evidence might bolster or undermine both parties’ claims. For custody cases, one would typically employ a guardian to investigate issues that discovery isn’t well designed to uncover. One can even seek to have the other party tested for drugs or alcohol.

Whenever one puts a dispute to a judge for decision making, no result is certain. However, once one has fully investigated both parties’ factual allegations, one should be able to make a reasonable prediction on the range of likely possible outcomes. An attorney unable to make such a prediction six months into his or her representation has simply not been doing the necessary work. However an attorney making any predictions on outcome at the initial meeting is a fool, a liar, or both. First you investigate….then you predict.