One of the problems with clients having inflated expectations about potential litigation results is that it becomes harder to actually declare victory. Many people are able to make practical decisions and settle cases for “business” or “economic” reasons. But there are plenty of others whose belief that they were wronged, or have difficulty taking responsibility for their role in the dispute, presents a tremendous obstacle to practical decision-making. At the end of a mediation, some people have to feel as if they won something, even if it’s not a complete victory. Mediators can tell your clients that the opposing party is offering way more than they ever intended, but the further that offer is from the client’s unrealistic expectations, the harder it is to convince them. With these clients, and really any client, it is critical to check runaway expectations from the beginning and at every turn.
There are plenty of ways to communicate risk without having clients question whether or not you are on their side. Here are two examples of delivering candid case assessments:
“I believe in you and your case, but I wouldn’t be doing my job if I didn’t paint a picture for you of what the jury will hear from the other side”;
“We both need to be careful not to overestimate our chances of success. Even though I am on your side, my job is to be as objective as I can be about the potential outcomes.”
Make sure to provide a case evaluation in writing that includes a description of the adverse evidence and argument that the opposing party will rely on. Your clients are more likely to internalize the information if it is in writing and you will be less likely to sugarcoat the facts in writing. If you discuss an opening offer with your client, particularly when you plan to start aggressively, be sure to prepare your client for what the second and third moves will look like, and when you should be making some significant movement.
Finally, share with your client what the opposing counsel might view as a settlement range, assuming they wholeheartedly believe in their client’s case narrative and the reading of the law they have articulated to you in their briefing and correspondence. In other words, it is important to let your client know that their opponent’s perspective on the facts and law do not align with yours or theirs.
All of these methods for grounding your client in reality make it more likely that they will be satisfied with a compromise and your representation.