Using the Smell Test in Practicing Law
Judge Primeaux has an interesting post today on the smell test. He opens:
Sometimes you know something ain’t right. It doesn’t pass the smell test.
Or, as US Supreme Court Justice Potter Stewart opined, famously employing a different sense when attempting to define obscenity: “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it …” Jacobellis v. Ohio, 378 US 184, 197 (1964).
Lawyers have to know when to use the smell test and when they have to look past it.
When I started my own law firm nine years ago I had no experience as a plaintiff lawyer. I knew I could litigate a case from the plaintiff side. But I learned the hard way that I did not have the experience to do a good job screening a plaintiff case. In essence, I had no sense of smell for screening cases. The result was that I took some cases that I shouldn't have.
Nine years later after screening hundreds—if not thousands—of cases, I have a keen sense of smell. It's now common for me to reject a case that sounds promising on the surface because the case doesn't pass the smell test. Many times, I can't put my finger on why. I just know that something ain't right.
Defense lawyer friends of mine sometimes can't believe how many hours I can put into evaluating a case before rejecting it. A defense lawyer who only bills by the hour views this as a waste of time. But lawyers with experience taking cases on a contingency know better.
When the case will be on a contingency, the most important time the lawyer spends on the case is the time spent evaluating whether to take the case. Once the lawyer takes the case, she is out the plane door regardless of whether the parachute ends up opening or not.
Rick Friedman says that a plaintiff lawyer should not take a case unless he is willing to take it to trial….and lose. I agree. But I still do everything that I can to avoid that happening. Sometimes that means rejecting a case based on a gut-feeling. The proverbial smell test.
Perhaps that means being overly-cautions with some potential cases. But taking too many cases that go south is a good way to work yourself out of your law practice.
Defendants and defense lawyers, on the other hand, can put too much emphasis on the smell test. But that is a topic for another day.
as they say in poker, 'there is more money to be made in the long run by folding the winning hand than by playing the losing one.'
85%-90% of the cases I screen never make it past the initial phone call - smell test. Half of the rest get culled after a review of the medical records - not what you thought they were - smell test. the remaining few consume a large percentage of time through legal and medical research, consulting with experts, etc. they passed the smell test but the facts/medicine don't shake out. Ultimately, we probably accept somewhere between 1% and 3% of all cases screened - out of several hundred per year.
It goes back to your opening paragraph about knowing it when you see it. The right case somehow has a away of choosing you. Those are the ones you still believe in even after a jury returns a defense verdict ... at least that's how it is for me.
Anyone who still believes that plaintiff's lawyers are filing frivolous medical malpractice lawsuits needs to wake up. It's nothing to put up 50k of your own money into a med mal case. it's not uncommon to sink 100k and I've seen much more pumped into a case. One or two "frivolous" lawsuits in this arena and the show's over.
My nursing-home clients are indeed seeing more record requests that don't go anywhere, and *fewer* dubious suits filed.
They do still happen. The clients y'all turn away do not necessarily decide "oh well, I don't have a case." They go back to the phone book, and eventually they will find someone.
I wonder if there would be so many prospective clients to put to the "smell test" if the public were not constantly bombarded with TV commercials and print ads telling them someone may owe them something.
who knows. I cringe when I see the commercials too. But every lawyer stands on his own feet. You'd be surprised how many calls we get from folks who aren't necessarily interested in a lawsuit, but simply want to know what happened or why their loved one died. Commercials or not, most of these folks wouldn't be calling a lawyer at all if their doctors would simply talk to them.