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In your entire legal career, you've probably never started a client meeting by saying: "I have an idea so crazy it just might work." Perhaps if you have a flare for the dramatic, you've probably used that line with a drinking buddy, or even pulled it out during a meeting with a colleague or partner, but never in front of a client.
So ... what do you say when you need to get a client to go along with a novel litigation strategy? Generally, to get a client to loosen the purse-strings for any reason, you need to explain the risks of failing to do so, along with the potential benefits. Below, you'll find three tips to help convince your client that your novel strategy is worth pursuing, and no, none of them involve crowdfunding.
1. Explain How the Strategy Works
If you expect your client to finance a novel litigation strategy, you should make sure you can explain it clearly. If you can't explain it clearly to your client, you should think long and hard before trying to litigate it before a judge, and then think even harder if you plan to take it to a jury.
Whether it is based on statutes, constitutional law, case law, or a combination of it all, you need to be prepared to break it down in a way your client will understand. For example, a few years back, the first ever "reverse class action" or "defense class action," though being a novel strategy, paid off big time. Also, you need to explain the financial risks, including whether the client could be taxed for an opponent's costs and/or attorney fees.
2. Explain the Long Term Benefits to Your Client
One of the biggest draws to pursuing a novel theory for corporate clients is the potential to avoid future lawsuits. Avoiding future legal battles can certainly be both the stick and carrot when it comes to leading clients to make the right decision. After all, not only can legal battles lead to costly settlements and judgments, but a client will still have to pay attorney fees and case costs regardless of any monetary award.
Although novel strategies can often lead to appeals, reversals, re-litigating issues, and exorbitant costs, the rewards, if great enough, can easily justify the risk (and can sometimes even make losing a financial boon).
3. Public Benefit and Positive PR
If the novel strategy at issue would benefit the public, or just your client's own customers, then the positive PR could make the litigation pay for itself, win, lose or settlement. Think about all the possible benefits, such as the publicity of being on the right side of a fight, and then think about the financial returns associated with those benefits, then explain it all to your client.
But, most importantly of all, do not forget to cover your own potential exposure by explaining the riskiness of pursuing untested strategies.
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