Lawyers, Litigation/Trial Law

4. Lawyers: The Lawyer as Diagnostician

Among a lawyer’s most important functions is diagnosis. Obviously, all [lawsuits] are a lot alike, but each case has issues that make it different from other cases. There has never been a [lawsuit] just like yours, with the same people, the same facts, and the same judge or jury. An issue that a lawyer sees in your case may be of little or no consequence, or it may be of monumental importance.

One thing is for certain: Legal issues are not always obvious. Subtle differences in facts can completely change the outcome of a case. The essence of diagnostic training in law school and for bar examinations is “issue identification.” If a law student cannot identify the “legal issues” that result from subtle changes in a fact scenario, that student will probably not ever become a lawyer. In law practice issue identification is even more difficult than in law school because cogent facts are frequently mixed and intermingled with layers of other facts and emotional issues that have little or nothing to do with the case. Moreover, practicing lawyers must also identify cultural issues, community values, and political issues that may affect a case as much or more than the “legal issues” taught in law school.

Finally, in an adversary system in which your opponent is raising new issues and changing strategies, a lawyer attempting to diagnose or analyze a case is shooting at a moving target. It is more like a chess game in which you can’t make a decision until you consider your opponent’s last move and the moves that he or she is likely to make after your next moves. This is particularly true in divorce and child custody cases because the actual facts of the case can and do change as the case proceeds.
Good legal analysis not only results in better outcomes for cases, it also results in savings of time and money. Your lawyer’s clear analysis, indicating that a settlement offer is reasonable or that there are few benefits likely to result from the pursuit of a particular theory or strategy, allows you to end the legal process more quickly. This can save precious resources needed to start a new life or take care of children.

In a world that demands action and admires action heroes and macho decision makers, good diagnostic procedures and legal analysis are often the first things to be thrown overboard. Because clients can’t see the lawyer’s brain when he or she is thinking about the case, many clients are reluctant to pay for something so vague and intangible. This, of course, causes lawyers to search for “billable events.” Like doctors and dentists, who long ago learned to bill for “procedures,” lawyers have learned that it’s easier to get paid if you “do something.” Not only must they do something, it must be something tangible and identifiable. So, like doctors who have learned that they can’t get paid for not prescribing pills or for not doing procedures, lawyers have learned to file pleadings, have conferences, set hearings, appear in court, and a zillion other things that are sometimes necessary but are not something you would do if the mission can be accomplished without jumping through these hoops. Besides, all of these activities are easier than thinking about the case precisely because they require little or no thought.

Yes, I can understand why you’re reluctant to pay your lawyer just to think about your case. You are right to be suspicious. Many of our action heroes have learned that they can add heft to their billable hours by adding in charges for periods of “legal analysis” when they are really thinking about their golf game or planning this season’s big charity event.

But, I believe you can figure out who really cares enough about you and your case, not to mention about being a good lawyer, so that you won’t be fooled for long by those who are supposed to be finding ways to help you out of your troubles.

In short, you must respect yourself and your case enough to demand that the attorney representing you provides the real thing: careful and thoughtful consideration of your case. I can almost guarantee you that you’re going to pay for these services whether you actually receive them or not. You might as well dump the phoneys and find a lawyer who will shoot straight with you and give you the real stuff: his or her brain power. But keep in mind that it takes heart and soul to motivate the brain.


Robin M. Green, Divorce: When It’s the Only Answer (The Ordinary Mortals Guide, Inc., 2005), Chapter 12, pp. 74-75.