Why clients are told to "keep quiet"

It is practically axiomatic in legal circles these days that lawyers instruct their clients to have no contact with the other side. Is this really good advice? Most lawyers take the position that their clients should not speak with anyone about the subject of the legal dispute to prevent the unwary client from sticking his foot in his mouth. This surely makes sense in a criminal matter where the potential defendant is clearly outgunned by the many years of experience of interrogating police officers and prosecutors. It may also be true where an injured claimant is contacted by a seasoned insurance adjustor who knows how to get information that will harm any future potential claim.

But it is not true for the vast majority of other civil cases that are filed, including divorces and other family matters, probate disputes, business disputes, real estate disputes, medical malpractice and a host of other claims that routinely end up in court without any conversations ever having been held between the two parties with the dispute. And why is it that this process only occurs in the United States? Are Americans that much dumber than the rest of the world where such secrecy is not the standard practice and where the parties actually try to resolve their disputes before they run off to the courthouse?

But it’s not just the lack of pre-lawsuit discussions between the parties that’s a problem; the lawyers themselves rarely discuss an early resolution. Most lawyers will tell you they don’t know enough about their cases in the early stages to advise their clients properly about a fair resolution. They need to spend lots of money doing discovery first. But is that what the clients really want? Would most clients rather have their cases resolved early on before all the money has been spent? Believe it or not, that is just not the mentality of the legal community, and, to put ultimate blame where it ought to be, it is also not the mentality of most Americans who would rather wash their hands of the dispute and turn everything over to the lawyers.

My favorite story involves a conversation I had with a divorce client (many years ago – I won’t touch that kind of case any more). I told him what I told all my divorce clients at the time – that I could get them a divorce for $500 or $50,000, it was their choice. I always told them that, in the end, the piece of paper they would get from the court at the end of their case would look pretty much the same whether they spent $500 or $50,000. One client actually told me to “Screw the B----; I want her out on the street with nothing but her bra and panties.” When I told him this would never happen no matter how much money he spent, he replied “I don’t care; I’d rather pay you $50,000 just to see her suffer.”

While this level of aggression occurs only rarely, the fact of the matter is that there is an emotional component in almost every case, and lawyers do not do enough to neutralize these emotions so a reasonable assessment of the client’s position can be made. Indeed, some lawyers even take advantage of this situation and fight harder to vindicate the client and prove their own legal prowess.

Join me next week for What has the digital age done to the American legal system?