Most clients hire their lawyers for the lawyers expertise and experience. There is an expectation that the lawyer will guide the client through the process, given them the strategic options, and counsel them regarding settlement positions and opportunities. Sometimes, client’s hire lawyers that they think they can control, who will do their bidding whether or not the strategy is sound or the legal position meritorious. Others still, hire their attorneys because of their expertise and experience, yet cannot help themselves and seek to control every detail.
While often, collaboration with a client can create excellent results – after all, who knows the details of their life better then the client. That said, there is a difference between collaboration, and the client imposing her or her will on the aspects of the case that should be the domain of the attorney. Even when the client is an attorney, it is dangerous if they think that they know better then their attorney how to present their case.
Several years ago, I represented the wife of an attorney in particular – a litigator. At a very early mediation, he came into the room boasting, if not threatening that he has tried more cases than anyone in the room. Throughout the case, he made his lawyer take legally unsupportable positions, played games with discovery, tried to hide assets, failed to provide full information to his own forensic accountant and then, at trial, clearly directed his attorney’s questioning of the witnesses. Needless to say, after an 11 day trial, he was crushed on every issue. Moreover, his conduct both before and after the trial caused him to pay a substantial amount of his wife’s legal and expert fees. His attorney was made to look bad and his forensic accountant was essentially called a liar – albeit in nicer terms – all because of the husband thinking he knew better than anyone else.
I am presently involved in another long trial where it is clear that the opposing litigant is running the show. His direct examination was unusually long and contained numerous self created exhibits that were testified about in unnecessary detail. Moreover, the same was true for the expert testimony, both direct, and more importantly on cross examination. The client created questions at best, unduly lengthened the process, and at worst, could arguably hurt both his own credibility and credibility of his own expert. Aside from causing the cost of the matter to increase exponentially, the insistence on controlling the questioning could actually negatively impact his case.
The bottom line is that client’s should be careful to not insist that collaboration turn to actual control thereby negating their attorney’s experience and expertise. While it is not unusual to want to maintain total control, the attorney usually knows the law better and can better implement the jointly agreed upon strategy. The attorney will have a better sense of the big picture and is better able to view things more objectively than the client. Sometimes less is more. Not every question needs to be ask. Not every fact needs to be presented if it doesn’t help, or perhaps can hurt your case. If one of the allegations is that the spouse is overly controlling, etc., the controlling conduct at trial can prove that point almost better than the other spouse’s testimony. In short, a client should be careful when insisting on taking over a case from his lawyer.
Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or firstname.lastname@example.org.