Trial Magazine

Many of us chose to become trial lawyers because the role offers a powerful opportunity to protect vulnerable and underserved individuals from harm inflicted by more powerful entities. Others may have veered to this work after unfulfilling experiences at defense firms tethered to institutional and corporate clients.

Plaintiff attorneys have both the challenge and the advantage of choosing which cases, and which people, we represent.

Unlike those firms—whose clients typically expect them to accept all cases—we have both the challenge and the advantage of choosing which cases, and which people, we represent. But that noble instinct to help can also lead us to accept cases with little chance of success or to stray beyond our areas of expertise.

Here are some practical tips for making prudent case selection decisions.

Structure your intake process. Our firm employs several experienced, well-trained intake professionals who follow written protocols for gathering client information, analyzing case viability, and routing matters to the appropriate team. While some personal injury claims require a limited preliminary investigation, we rely on a few dedicated intake attorneys to explore more complex inquiries—such as class actions, qui tam actions, and complicated medical negligence and products liability cases.

Evaluate cases with a clear, critical eye. Some cases present immediate issues—lack of insurance or low policy limits, coverage issues, judgment-proof defendants, or expired statutes of limitation. But most cases aren’t so clear-cut. When a claim shows wrongdoing by the defendant and obstacles that can be overcome, we typically ask the potential client to sign a retainer agreement so we can evaluate it more thoroughly.

The pace of that evaluation depends on the complexity of the matter. Some cases require significant time for legal research, record collection and review, expert consultation, and other time-consuming work. Once we gather all necessary information, the firm’s subject-matter experts decide whether to proceed. Throughout, we aim to keep clients informed and provide answers as quickly as possible.

We recognize the anxiety many potential clients experience during this process and strive to respond to all inquiries in a timely, respectful way. Still, if an attorney harbors serious doubts about a case’s merits or viability, my experience says it’s better to pass.

Get input from lawyers who handle these claims. If you’re unsure about a case outside of your usual focus, consult with attorneys who regularly handle that type of work. This underscores the value of building a strong professional network and staying active in legal communities. You should also stay current on recent verdicts, settlements, and legal developments in your jurisdiction.

Consider co-counsel or referrals. If you’re not comfortable assuming full responsibility for a case but still want to be involved, bringing in co-counsel can be a smart option. It’s also a good way to gain valuable experience.

When you decline a case, consider referring it, if appropriate. (In North Carolina, we often use the term “co-counsel” for referrals as well.) Done thoughtfully, referrals can build goodwill. But it’s essential to refer only cases with real potential. Develop clear criteria with your co-counsel about acceptable thresholds for injury, treatment, and value, and refer only cases that meet those standards.

In our jurisdiction, fee sharing requires joint responsibility. If you pursue this route, establish a fair and transparent fee-splitting arrangement at the outset, and ensure the client understands and agrees to it in writing.

Finally, it bears repeating: Be intentional and timely with your case selection decisions and client communications. Don’t let cases wither on the vine. Prompt, clear decisions not only serve your practice—they show respect for the people who seek your help.

Gary Jackson is an attorney with the Law Offices of James Scott Farrin in Durham, N.C., and can be reached at gjackson@farrin.com.