He did the unspeakable.
He did something that most attorneys NEVER do.
He withdrew an offer.
An offer to settle.
Out of the blue.
Without any reason.
Without any notice.
When I asked him whether the offer was still good, he said it was no longer on the table.
Bad for my client.
Bad for the case.
This was a bad case.
A case with good damages.
But a case with questionable liability.
It was a case I handled many years ago.
One handed to me by my boss.
When I was an employee.
He didn’t want to handle it.
He knew it was a loser of a case.
He knew we’d lose at trial.
He threw it to me, hoping I’d perform some miracle.
Hoping I’d pull a rabbit out of a hat at the last minute.
My client was not understanding.
My client was a pain in the butt.
He was demanding.
He didn’t understand why my boss wasn’t handling his case anymore.
I just happened to be the poor sap who caught the case.
I just happened to be the guy who was expected to win a loser of a case.
I just happened to be the guy who now had to explain to my client the reality of litigation and trial.
Well, I was able to accomplish something my boss had not been able to do.
I was able to get an offer from the defense lawyer.
I think the defense attorney felt sorry for me.
He knew he’d likely win the case at trial.
He knew he had more cases with my firm.
This wasn’t the first case he’d handled with my firm.
We had a good reputation.
At least up until that point anyway.
The offer was marginally fair.
Ok, it wasn’t fair.
It was barely an offer.
It was an offer made out of pity.
Pity for my client.
Pity for me, a young attorney, being thrown to the wolves.
Pity for me since I was now expected to try this case knowing full well I’d likely lose at trial.
I called my client into the office.
I told him about the offer.
He seemed understanding.
Then he got it.
Then he realized this was it.
It would all be over if he accepted this offer.
Even though I wanted to be done with this case, I still had an ethical obligation to my client to do what was right. I still had to advise him about this pending offer.
My advice was this offer was very thin.
It was insulting.
It was not going to change his condition.
However, I told him that going to trial will be worse.
Going to trial we’d likely lose.
Going to trial we’d have a very difficult time showing we were more likely right than wrong.
He didn’t care.
He didn’t have to spend any money out of his own pocket to prosecute this case.
He didn’t have any skin in the game.
He decided that since his offer sucked, he had nothing to lose.
Good decision for him.
Bad decision for me and my firm.
Nevertheless, it was his decision to make.
Later that day my client called me.
Before I had a chance to call my opponent.
He told me to wait.
“Don’t call him yet. I want to think it over for a few days,” he said.
“Ok, I’ll wait.”
Four days later, my client called me.
“I’ve talked it over with my wife,” he said.
“I want to take the offer.”
Wow. Didn’t expect that one.
I told him “Ok, I’ll make the call.”
I called my opponent.
“My client just authorized me to accept your pitiful offer,” I said with some dignity.
The defense attorney paused a few seconds before answering.
“Well, that’s nice, but the offer is no longer on the table,” he said simply.
“What? What the hell is this? This is no way to negotiate. This is bullshit,” I said angrily.
“You don’t take an offer off the table unless you tell me the offer is time sensitive. You don’t make an offer and then take it off the table. That’s total bullshit!” I again said.
This wasn’t good.
This put me and my client in a bad position.
“Why would you withdraw your crappy offer?” I demanded.
“Listen, we made you an offer. We didn’t hear from you. We assumed you were rejecting the offer. My carrier told me to withdraw it,” the defense lawyer said defiantly.
I responded “Don’t ever expect to negotiate a case with me again. I’ll see you at trial,” I said with finality. Then I slammed the phone down.
I picked it up again to call my client to tell him the news.
He was again confused.
He didn’t understand why he couldn’t settle his case now.
He didn’t understand how an attorney could make an offer and then withdraw it.
I told him it meant we were going to trial.
To trial we go.
To trial we went.
It was a short trial.
Just a few witnesses.
The jury knew.
They knew there was no case here.
No matter how much I explained.
No matter how much I argued.
No matter what I did on cross-examination, they knew.
It was inevitable.
The verdict was expected.
Verdict for the defense.
It was a shame though.
It was a waste of my time.
It was a waste of my resources.
It was a waste all around.
I will tell you, it’s been many many years since that trial.
Remember when I said I’d never negotiate with that attorney again?
Well, I kept my word.
I never did.
What he did wasn’t right.
What he and his insurance carrier did was wrong.
What he did ruined his reputation in my eyes and the eyes of every lawyer I spoke to afterward.
As for my client?
The one who had significant injury but questionable liability?
He didn’t care.
He didn’t have to pay a dime to prosecute this case.
He lost nothing.
He gained nothing.
Nor did he care that we had to try the case.
This case taught me a valuable lesson.
Selecting the right client is everything.
It’s something I’ve paid careful attention to ever since.