What It Takes: Creating The “Risk Portrait” to Navigate the Legal Storm

In civil litigation, a defense lawyer’s most crucial task in case handling is to develop a comprehensive “risk portrait” for their clients as they address their response to a litigated claim.

Far from being a mere collection of legal details, the risk portrait is a meticulously crafted roadmap that is not only written, but also spoken through clear, concise language. The risk portrait guides strategic decision-making and navigates the complexities of each case.

Demystifying the Risk Portrait: What It Really Is

At its core, the risk portrait serves as a holistic assessment of the client’s exposure in a given legal matter. It is an intricate tapestry woven from a multitude of threads, including:

• The Claim and Underlying Facts: A thorough identification and understanding of the material facts, key witnesses, the allegations against the client, the supporting evidence, and potential defenses is paramount.
• Applicable Law: Identifying the relevant legal principles, precedents, and statutes governing the dispute is crucial for determining the client’s legal standing and potential outcomes.
• Legal Analysis: Applying the law to the facts requires a deep grasp of legal theories, case law, and the potential interpretations of legal provisions.
• Opposing Counsel: Understanding the strengths, weaknesses, litigation style, and potential strategies of opposing counsel is essential for developing an effective counteroffensive.
• Venue and Presiding Judge: The venue in which a case is filed, along with the experience, rulings, and demeanor of the presiding judge, can significantly impact the case’s trajectory.
• Understanding Valuations: By understanding the reasonable ranges of values for the subject claim, lawyers can better negotiate settlements and prepare for trial. Much of this understanding is built on the lawyer’s experience litigating similar conflicts.
• Additional Intelligence: Gathering information beyond the legal realm, such as public perceptions, media coverage, outcomes in similar disputes, and industry trends, can provide valuable insights that may influence the case’s outcome.

Further, in addition to understanding the law and its applications, the remarkable civil defense lawyer possesses an appreciation for nuance and other intangibles that may not be immediately apparent to others. By understanding and appreciating these intangibles, the lawyer can develop a more effective strategy for their client and achieve a more favorable outcome.

Providing the client with a realistic understanding of the costs of litigation is crucial throughout the development of their response to the dispute. This information is an integral part of the risk portrait, as it allows the client to make informed decisions about their case and prepare for a range of potential outcomes. The costs of litigation can vary widely depending on the complexity of the case, the location of the court, the experience of the attorneys involved, and other factors. It is important for the lawyer to be transparent about these costs from the outset so that the client can make informed decisions about their legal representation.

In addition to the direct costs of litigation, such as attorney’s fees, court costs, and expert witness fees, there are also indirect costs that should be considered. These indirect costs can include the time and effort that the client will need to spend on their case, the potential impact on their business or job, and the emotional stress of litigation. By understanding the full range of costs involved, the client can make informed decisions about whether to pursue litigation, whether to settle out of court, and how to budget for their case.

Again, at the end of the day, the risk portrait is about providing the client with a realistic illustration of its exposure in the matter from all angles, enabling them to make informed decisions about their case and prepare for a range of potential outcomes.

The Risk Portrait: A Foundation for Effective Representation

The risk portrait serves as a cornerstone of effective defense, enabling us to:

• Assess Client Exposure: By identifying potential risks and liabilities, we can provide clients with realistic expectations of the case’s potential outcomes.
• Craft Strategic Plans: The risk portrait guides our strategic approach, allowing us to prioritize efforts, allocate resources effectively, and proactively address potential challenges.
• Evaluate Settlement Options: With a clear understanding of the client’s exposure, we can objectively assess the merits of settlement offers and make informed recommendations.
• Prepare for Trial: The risk portrait provides a comprehensive roadmap for trial preparation, ensuring that we are well-equipped to present a compelling defense.
• Maintain Client Trust: By keeping clients informed of the potential risks and developments in their cases, we maintain open communication and manage their expectations throughout the legal process.

Developing a Comprehensive Plan: From Risk Assessment to Resolution

Once the risk portrait is fully developed and the client’s exposure is clearly understood, the focus shifts to formulating a comprehensive plan to achieve the desired outcome. This plan may involve pursuing a negotiated settlement, engaging in alternative dispute resolution (ADR) mechanisms, or litigating the case all the way through trial.

• Negotiated Settlement: When a mutually acceptable settlement between the parties can be reached, it can provide a swift and cost-effective resolution for both parties.
• Alternative Dispute Resolution (ADR): ADR methods, such as mediation or arbitration, offer a neutral forum for reaching a resolution without the expense and uncertainty of trial.
• Trial: If negotiations and ADR fail, the case may proceed to trial, where the risk portrait serves as the foundation for our arguments and strategies.

Constant Communication: A Bridge of Trust

Throughout the legal process, maintaining open and honest communication with the client is paramount. This ongoing dialogue ensures that the client is kept informed of material events, understands the potential risks and rewards, and is actively engaged in shaping the course of their case.

• Regular Updates: Regular briefings on case developments, potential risks, and strategic decisions are essential for keeping clients informed and maintaining their trust.
• Client Feedback: Welcoming and incorporating client feedback allows us to tailor our approach to their specific concerns and priorities.
• Preparation for Critical Events: As crucial moments arise, such as depositions, motions, or settlement negotiations, we thoroughly prepare clients, managing their expectations and providing guidance.

What Separates A “Great” Risk Portrait from A “Good” One?

A great risk portrait is not only comprehensive and well-researched, but it is also dynamic and adaptable. It should be constantly evolving as new information comes to light and the case progresses. A great risk portrait should also be tailored to the specific needs of the client and their case. It should consider the client’s unique circumstances and goals.

In addition, a great risk portrait should be communicated effectively to the client. The client should understand the information in the risk portrait and be able to make informed decisions about their case. The lawyer should also be able to use the risk portrait to develop a strategic plan for the case that will achieve the best possible outcome for the client.

Finally, a great risk portrait should be used as a tool to manage the client’s expectations. The client should be aware of the potential risks and rewards of their case, and the lawyer should be able to help the client set realistic expectations. By using a great risk portrait, lawyers can help their clients navigate the complexities of litigation and achieve the best possible outcome for their cases.

The Risk Portrait: The Guide Star in the Dark of Litigation

The risk portrait, when crafted with expertise and communicated with transparency, serves as a guide star for clients navigating the complexities of litigation. It empowers us to provide informed guidance, protect our clients’ interests, and strive for the best possible outcomes. The risk portrait is an indispensable tool, ensuring that we approach each case with strategic foresight, unwavering dedication, and a deep commitment to justice.