THE PROBLEM, THE PRIZE AND THE PROCESS

August 17, 2012

Every civil matter begins with a client having a legal problem that requires the expertise and guidance of an advocate. The human story underneath the surface of the legal issue is often the most persuasive issue that a jury will have interest in. While this type of persuasive issue is often not controlling during the pretrial litigation, advocates would be well advised to remain sensitive to the issue behind the issue. If and when the case becomes a trial, those human issues become an integral part of case analysis and the development of legal theories, factual theories and moral themes.

At the opposite end from the problem is the prize–the goal sought by the client. Often the client’s goal is clear to the advocate and the client. While a client’s goals may be clear that does necessarily mean they are attainable. Regardless of the legal issue, almost all clients need counseling by their attorney to adjust their expectations or goals for the representation so that the can properly understand what the law will allow. There are other situations where the client is concerned or upset about some situation or occurrence but is not sure what to do. It will be your job to sort through the convoluted tale to find out whether there is any problem for which the law affords any remedy that is feasible. Identifying the prize, and the potential acceptable solutions is often a large part of representing clients. It also leads you to the proper process to make that happen.

In between the problem and the prize lies the process of adjudication– the way in which the advocate most effectively moves their client from problem to prize. This becomes the focus of “the necessary” discussed in an earlier blog post.

Pretrial advocacy begins with the initial presentation of the prospective client to the advocate for consultation and possible representation. The would-be client already has a legal problem at this time and is looking for help in resolving that problem. The process involves a number of intermediate steps once the attorney-client relationship has been formed and the pretrial portion of advocacy concludes in one of three ways–with a (1) court ruling on a dispositive motion, (2) a voluntary agreement to settlement the dispute, or (3) the commencement of a trial.

The seven-step process that represents the “normal” flow of a case includes (1) Formation of the attorney client relationship, (2) Initial case analysis, planning, and preparation, (3) Pleadings and attacks on pleadings, (4) Formal discovery, both written and oral, (5) Motion practice, (6) Settlement, and sometimes (7) trial. We will look at each of these to see if we can identify a checklist of things you should think about.