OTLA Trial Lawyer Winter 2021

55 Trial Lawyer • Winter 2021 By Kelly Andersen OTLA Guardian W hen I began as a junior associate in Klamath Falls in 1979, the senior partner spoke of an old grizzled defense attorney, Stan Jones, who had once remarked, “You make money on the cases you don’t take.” For some reason, Jones’ utterance has stayed with me. Over the years I have learned to cherish the wisdom of his odd advice. I have come to realize that some of our best decisions are when we decide not to take a case. Even today, as I meet with new prospec- tive clients, I hear old Jones’ ghost whis- pering, “You make money on the cases you don’t take.” To illustrate this principle, please al- low me to divert for a moment to the world of training horses. In the 1990s, Monty Roberts emerged before a stunned Kelly Andersen world as the man who turned upside- down the methods of training horses. Instead of cruelly “breaking” horses, Roberts gently “whispered” to them. By such tender training, he achieved remark- able results. He even trained horses for the Queen of England. In his bestselling book, “The Man Who Listens to Horses,” Roberts ex- plained that when he was young, just starting out in the business, he sought the advice of an old man who had gained a great reputation for training horses. For a time, Roberts even worked for the old fellow for free to model his skills. When Roberts finally felt he was ready to go out on his own, he took in six horses for training. (As a good businessman, he got a retainer for each horse.) After weeks of working with these horses, he returned to his mentor to ask advice on some of the techniques he was still learning. The old man asked Roberts to describe each horse, its temperament, responsiveness, obedience, strength and so forth. As Roberts did so the old man quietly nodded and made mental notes. He then instructed Roberts to take three of the horses back to their owners and refund their money. Roberts objected, saying he had already spent the money and could not afford to give any refunds. The old man responded that he could not afford not to do so. He explained that these three horses would never amount to anything, yet they would be known as horses Roberts had trained. The only way to avoid that reputation was to return those horses, refund the money and devote his efforts to training the three remaining horses that had more promise. At that point in his budding career, Roberts did not yet have enough experi- ence to discern fundamental and un- changeable horse problems. (In time he would gain the needed experience to make such judgments.) Similarly, a be- ginning attorney might not initially be able to discern a “bad horse,” but in due time and with more experience, it be- comes easier and easier to spot obvious problems, even at the first interview. In other cases, it will take time to discover problems. To guard against hid- den landmines, my office has a 120-day rule. We explain to the prospective client that we are tentatively accepting their case. We then open a file and docket the statute of limitations and any tort claim notices. We also gather the medical re- cords, do legal research on novel legal issues, obtain government reports and then make our final decision within 120 days, reserving the option to end our involvement if case facts don’t turn out as the client has represented. Whether discerned at the initial meet- ing or at the 120-day mark, what follows are ten warning signs of what usually will be a bad case. Some of my warnings might seem harsh. You may even wonder 10 Warning Signs of the Client You Don’t Want See Warning Signs p 56