Estimating the Likelihood of Success
"We're going to win," a board-member announced, pointing at the application for a temporary restraining order, and looking around the room. Turning her gaze to me, she reiterated, "it says, 'Plaintiff Will Likely Succeed on the Merits,' and then you give a bunch of reasons why. That means we'll win the case, right?" "Maybe," I began. This is why people hate lawyers, flashed in my head, as I inhaled and started to explain. I wasn't being coy with the board or dishonest with the court: I was estimating the likelihood of success, as an advocate and advisor.
Rule 2.01 of the Texas Rules of Professional Conduct requires that when "advising or otherwise representing a client, a lawyer shall exercise independent professional judgment and render candid advice." Rule 3.03 states that a "lawyer shall not knowingly make a false statement of material fact or law to a tribunal." Although these rules require a lawyer's "candor" to a tribunal and "candid advice" to a client, nowhere do they require that her communication with both be consistent. In fact, these rules allow her estimation to her client and the court, of the likelihood of her client's success, to conflict.
As a commercial trial attorney, I often represent publicly-traded and privately-held entities and other organizations. In the course of my representation, I meet with and advise GCs, boards of directors, audit committees, officers, and executives. In almost every meeting, I anticipate that at least one of these client representatives will ask, in some form, whether we are going to win.
A CEO may ask for the probability of success as a percentage. A COO or marketing executive may want to know whether we can use the litigation to leverage a new or better deal with the opposing party. A CFO or treasurer may ask how much to reserve for the litigation. To each, "success" may mean something different. I tailor my responses to each consistent with Rule 1.03(b) based on: (1) my understanding of how the facts and law relate to the representative's particular interest; and (2) my assessment of their sophistication.
In addition, Comment 2 to Rule 2.01, under "Scope of Advice," states in part, that "[a]dvice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as costs or effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate." Comment 2 describes other considerations the lawyer may discuss with her client, including moral or ethical ones.
The impact that these considerations can have on a lawyer's estimate of her client's likelihood of success is profound. Any one of them, whether it is the cost of the litigation, collectability of the judgment, or the potential to cause financial harm to the opposing party (to name only a few), can make "success" more or less likely, yet they have little to do with a legal analysis.