A recent article by Harvard physician Atul Gawande in the New Yorker discussed how poorly our society does in addressing end of life decisions where a person is afflicted with a diagnosis of terminal disease.  These are questions we don’t like to deal with.  And as the article poignantly illustrates, neither the patient nor the family wants to be candid about what is really going on. The result is often the employment of heroic measures that might possibly produce a favorable outcome but which are certain to make the patient’s life miserable. The author proposes that in these cases, patients are afraid to tell family members that further experimental treatment is not what they want out of fear that the family members will judge them a “quitter.”  Family members fear discussion that suggests abandoning further treatment will be construed by the patient as a signal that the family is tired of dealing with the illness.

Dr. Gawande has noted that as recently as thirty years ago, many physicians would not tell their patient how grave an illness was. This prompted us to consider whether attorneys and their clients are guilty of the same lack of candor when managing litigation.

Litigation of any kind is an evolutionary process where facts are collected and ultimately presented to a judge or jury for evaluation and decision.  In a family law context, clients tell us their vision of the world.  From that start, we try to collect evidence that supports the theory of the case.  Many times, the collection of evidence may change the strength of the client’s theory.  In some situations what sounded like a strong case on interview fails because there is little to no evidence to support it.  In other instances, as attorneys we see the evidence as supportive of our theory of the case but the trier of fact (usually the judge or hearing officer) telegraphs that he or she does not see the case as having the same merit we do as advocates.

In either case, either unsupported facts or an unpersuaded judge, there needs to be a frank reassessment of the litigation between attorney and client.  This is a difficult process because clients often don’t see weaknesses in their cases and when confronted with them, there is a tendency on the part of clients to suggest that the lawyers is losing faith or misled the client to begin with.  There are times when it makes sense to “tough out” the litigation process and go to trial and or appeal from an adverse ruling.  This requires frank discussion throughout the decision making progress.  Without it, the risk is high that a bad decision will be made and that the next dollars invested in the litigation will be poor investments.

As we have written before, every litigated matter involves an investment.  As with any other investment, it comes with cost and it comes with risk.  No case is a certain winner.  As you proceed with any such investment clients need to ask the questions that need to be asked.  Is the case growing stronger or weaker premised upon the evolution of the facts and the rulings in the case before trial?  Do not fall prey to the kind of blindness to which Dr Gawande alludes where you the client are not being realistic about the range of outcomes and their relative likelihood. Litigation is not life threatening in ways that disease can be. But it is no fun to buy lots of it when the outcome will only drain your pocket and leave you unhappy.  That’s a question clients need to ask if the case takes a bad turn.  Our reaction is often to just throw more at it and threaten to do more and not less. This is the American way. It’s what made Stephen Decatur and Davy Crockett folk heroes.  But, it is worth noting that when all was said and done the outcome for Crockett is not what he intended.