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Lawyers in Complex Cases – Learning Advisors

Dan Millman Sept. 5, 2015

When handling complex cases, lawyers must serve a dual function – advisor and pupil. Yes . . . you heard that right – pupil. Let me explain.

A lawyer’s function in any case – whether simple or complex – is to represent the client and protect that client’s interests to the full extent possible within the bounds of the law. In doing so, the lawyer must review the case, evaluate the goals and concerns of the client, determine the options available to the client and advise the client accordingly.  In advising the client, the lawyer must help the client understand the options as well as the benefits and risks of each of those options. In this regard, the lawyer is an advisor.  This is what most think of when asked about the role of a lawyer.

Another aspect of being a lawyer that may not be obvious to some concerns the lawyer’s role as a pupil – one who must learn about aspects of another field or profession. This role is more common in complex cases and is often not necessary in simple cases. Of course, in any case, the lawyer must “learn” facts and information from the client in terms of what the client is looking for, what happened to bring the client to pursue and/or defend legal proceedings and what the client’s concerns are. The learning aspect that I am referring to is more directed to learning about a field or discipline outside of the law. The type of field or discipline will, of course, depend upon the facts of the case itself and often involve the client’s business and/or the nature of a business transaction that is at the heart of the dispute.

For example, when defending a lawsuit alleging breach of contract for the sale of goods, the lawyer will need to know more than just legal principles to properly address it. The parties’ dispute may center on whether a particular product was delivered in conformance with industry standards, which would require some knowledge as to what those industry standards are. The dispute may command an inquiry into the reasonable expectation of the parties, which in turn could depend upon having an understanding as to what the common course of dealing is in the industry between similarly situated individuals.  The case may also involve a determination of whether certain damages were caused by the breach, which would likewise require some understanding of the process undertaken in the industry.

Knowledge that could prove helpful in such instances is often available from the most obvious source – the client. The client is likely to have worked in the industry and is therefore in a position to teach the lawyer about the industry.  In the example set forth in the preceding paragraph, the client is likely to be in a position to inform the lawyer of how the parties typically dealt with each other in the past and/or how individuals who trade goods deal with one another in the industry. The lawyer will have to learn about the process typically engaged in by parties to a sale of goods contract.

In the context of a personal injury lawsuit, an attorney will need to have some understanding of the injuries sustained, the effect those injuries presently have on the plaintiff and the permanence – or lack of permanence – of those injuries.  This will require a general understanding of some medical concepts. The question of whether a particular injury was caused by an event may likewise require such knowledge. Of course, as we know, such matters often require the retention of a medical expert. When that is the case, it is the expert – as opposed to the client – that is helping the lawyer obtain an understanding of the key medical principles involved.  Once again, the lawyer is called upon to learn about a field beyond that of the law.

Another example of a legal matter which requires the lawyer to learn aspects of another profession or industry is an accounting malpractice action. To evaluate whether an accountant’s actions were negligent and caused harm to the financial interests of another, the lawyer is called upon to develop an understanding of how an accountant is ordinarily expected to perform a particular task and to further understand why the accountant’s actions in this particular case did or did not comply with accepted accounting standards.  As with the preceding paragraph, this is an example of an instance in which it will be a retained expert – as opposed to the client – that will be assisting the lawyer in learning the key principles of the industry or profession.

Where significant time is called upon to acquire such knowledge, a lawyer will have to proceed in a responsible fashion.  If the client is being billed hourly, the client’s hard-earned money is paying for time. Clearly, if it does not benefit the client’s cause, it should not be pursued. On the other hand, where it is necessary toward effective representation, it is likewise irresponsible to forego such efforts – unless the client is advised of both the need for it and the risk of not pursuing it and thereafter makes an informed decision in instructing counsel not to proceed in that direction.

Needless to say, the lawyer – first and foremost – is expected to and required to serve the function he was paid to perform – that of providing legal representation. This article does not – and is not intended to – suggest in any way that a lawyer must necessarily spend countless hours learning another industry or profession.  After all, time is precious – and expensive. Indeed, as pointed out earlier, there are several cases in which no such efforts are necessary.  However, there are times in which the lawyer must develop some understanding of the workings of an entirely separate profession or industry so that the lawyer can effectively understand the case and advise the client accordingly. While such efforts are required with more intensity as a case approaches trial, it would not be prudent to entirely forego such efforts early in the case.  Indeed, the lawyer would be well-advised to undertake such measures early in the litigation. Doing so is likely to result in better preparation of the case at an earlier stage of the litigation and, consequently, may increase the prospect of settlement at an earlier stage of the proceeding, which ultimately saves the client additional costs.

Lawyers handling complex cases are, therefore, learning advisors.  They are legal experts that advise the client and who, in doing so, will need to learn complex concepts outside of their area of expertise.  Where complex matters are being litigated and require the retention of an expert, learning some basic concepts in another profession or industry is something that a lawyer should not shy away from.

While doing so will result in additional time, the effort will serve the client’s interests and will be well worth the time and expense.