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Attempting to Dominate Your Attorney is a Bad Idea (Only a Bad Attorney Would Let You Do It)

Some books read by the author suggest that the client should attempt to control and dominate the attorney to achieve the most cost-effective and satisfactory results. This idea, if carried to an extreme, is not usually possible or advantageous.

It is usually not possible to control and dominate an attorney because good attorneys are not that tractable. In many ways attorneys are paid to control and dominate others. In this regard, an attorney, particularly the modern litigator, plays much the same role as the hired “gunslinger” of the Old West. Counsel is paid to deal with others under adverse circumstances. For the same reasons that it was difficult to control the gunslinger, it is difficult to control the attorney. In the realm of law, the power belongs to the attorney. Moreover, only a fool hires a “gunslinger” then expects to have total control. If counsel is truly a “gunslinger”, counsel will not be that tractable.

Even if it possible, the idea of control and domination may not be advantageous to the client. Sometimes what the clients wants is not realistic. Most clients will have limited legal or business knowledge and experience. Due to these limitations, they may not be qualified to make all decisions in legal matters. Even attorneys hire other attorneys, when not working in their field of expertise. The attorney who yields to the client’s daily instructions will seldom do a good job, since this amounts to surrendering professional judgment to the client. It is also an ethical violation to act incompetently. Thus, if the client makes legal decisions, then almost always the quality of representation will suffer.

We live in an age of technology, technicalities, and specialization. Except when working in our own field, few of us can hope to know as much about anything as the expert in that field. We are forced to rely, and should rely, on the expert to achieve best results. The principle is as true for law as it is for auto mechanics and quantum mechanics. Thus, the wise client relies on the attorney.

This does not mean the client should be “shut out” from participating in the case or should give the attorney completely free rein. The ideal situation lies somewhere between those two extremes. The client should have information and provide input along the way and the client should always make the final decision on the terms of the deal or settlement. Bottom line the attorney is a counselor. Her job is to have the client be fully informed about the law, options, pros and cons and recommendation. But, the client always retains the right and duty to make the final decisions.

The client should also “be involved”. A caring, informed and involved client will usually obtain better results than an “absentee client”. Some clients can help the attorney brainstorm the case. Always, the client is most knowledgeable about the facts of the case. The client’s job is to make sure the attorney knows the facts- so well, in fact, that the attorney can tell the story as well as the client.

However, not all facts are equally important. Some facts have great legal significance. These are called the “material” facts. Other facts have little significance. These facts may be part of the story and add flavor and context, but do not prove anything relative to the legal theory in question. These facts are called “irrelevant” facts.

Because clients are not lawyers, it is usually very difficult for them to know the difference between material and less important and irrelevant facts. For that reason, clients tend to repeat and emphasize facts which trigger their emotions but are not as important to the case as other facts. One way the client can avoid this problem is to ask the attorney what kinds of facts are most important to the case and what legal theories these facts are material to.

In summary, select an attorney who will keep you informed and make you feel like part of a team. Then, be an active member of the team. Be responsible for the facts and final decisions regarding the terms of the deal or settlement; but leave legal decisions and strategy to the lawyer. If you are not confident in the attorney you have selected, then find another lawyer (keeping in mind the problems of idealization).

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Donald W. Hudspeth
Principal Attorney

Attorney Donald W. Hudspeth has more than twenty years’ experience practicing corporate and business law. Before attending law school, Mr. Hudspeth held a stock brokers license at the age of 21 and owned his own business at the age of 23. He was a business law professor at Arizona State University, West Campus, and has conducted classes and seminars for a number of higher institutions and organizations. Mr. Hudspeth has published two books on law and is the founder of the radio programs Law on the Edge and Law Talk.

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Mark S. Hamilton

About Attorney Mark S. Hamilton has experience handling all aspects of civil and commercial litigation in federal, state, and tribal courts at the trial and appellate levels. Practice Areas Business litigation Commercial litigation Education University Of Hawaii Wm. S. Richardson School Of Law, Juris Doctor - 2002 University Of Hawaii, Master Of Arts in Asian…

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