Taking the Case

AuthorJennifer Duncan-Brice
Def‌inition: Taking the case is the initial process of undertaking representation of a client, from the initial contact through
performing an initial factual investigation, undertaking legal research, and entering into a representation agreement
with the client.
Scope of Chapter: The initial client contact. Evaluating the case. Avoiding conf‌licts of interests and complying with
other rules of professional conduct. Fee arrangements. Drafting the engagement contract.
Strategies and Tactics: Review the case carefully at the outset to be sure that you want to accept it. Make sure that
the client has a clear understanding of the nature of the representation, the fee arrangements, etc. to avoid later misun-
derstandings and problems. Document the terms of your agreement with the client clearly and completely.
Statutes and Rules: DR 5-103; RPC 1.1-1.12, 3.1; 735 ILCS 5/2-1114; 770 ILCS 5/1 ff; 815 ILCS 640/1 ff.
Related Topics: Presuit Activities, Ch 2; Statutes of Limitation, Ch 3.
Forms: See digital access for the following forms:
Form 1:10, New Client Information Sheet.
Form 1:20, Fee Agreement (General Agreement-Contingent Fee or Hourly Rate).
Form 1:30, Fee Agreement (Contingency Fee Referral).
Form 1:40, Fee Letter Agreement (Medical Negligence Contingency Fee).
Form 1:50, Family Law Engagement Agreement.
Form 1:60, Family Law Statement of Client’s Rights and Responsibilities.
Form 1:70, Motion to Withdraw.
Form 1:80, Order of Withdrawal.
Form 1:90, Attorney Lien Waiver.
Form 1:100, Substitution of Counsel.
Form 1:110, Entry of Appearance.
Illinois Pretrial Practice 1-2
§1:01 Typical Pattern
§1:02 Attorney’s Purpose
§1:03 Client’s Purposes
§1:04 Handling the First Telephone Call
§1:05 Avoid Giving Legal Advice
§1:06 Types of Prospective Clients
§1:07 Evaluate the Client
§1:08 Pay Attention
§1:09 Gather Facts
§1:10 What Facts to Gather
§1:11 Market Yourself
§1:12 Explain Conf‌identiality
§1:13 Request Candor
§1:14 Explain What You Intend to Do on Client’s Behalf
§1:14.1 Explain Client’s Responsibilities
§1:15 Discuss Conf‌licts of Interest
§1:16 Describe Case Conference
§1:17 Describe Intended Research
§1:18 Describe Fact-Gathering Procedure
§1:19 Explain Consultation Fee
§1:20 Calendar Case Conference
§1:21 Give Prospective Client a Time Frame for Decision on Acceptance
§1:22 Discuss Applicable Statute of Limitations
§1:23 Final Caution to Prospective Client
§1:24 Offer Closing Advice
A. Weigh Costs and Benef‌its
§1:30 Importance of Initial Case Assessment
§1:31 Chance of Prevailing
§1:32 Potential Pay-Off
§1:33 Boost or Bane to Reputation
§1:34 Intangible Benef‌its
§1:35 Complexity
§1:36 Drain on Time and Staff
§1:37 Out-of-Pocket Costs and Expenses
B. Evaluate Client
§1:50 Personality and Demeanor
§1:51 Prior Counsel and Past Litigation
§1:52 Ability to Pay
§1:53 Sources of Referrals and Return Business
§1:54 Previous Representation
C. Consider Ethical (RP C) Factors
§1:60 Review Rules of Professional Conduct
§1:61 Is Claim or Defense Frivolous?
§1:62 Are You Competent to Handle the Case?
§1:63 Is There a Conf‌lict of Interest? General Rule: Adverse Interests
§1:64 Material Limitation Imposed by Other Responsibilities
§1:65 When Representation Permitted Despite Conf‌lict
§1:66 Prohibited Transactions
§1:67 Financial Assistance to Client
§1:68 Former Client Restrictions
1-3 Taking the Case
§1:69 Imputed Disqualif‌ication — General Rule
§1:70 Imputed Disqualif‌ication — Rule for Old Firm
§1:71 Imputed Disqualif‌ication — Rule for New Firm
§1:72 Imputed Disqualif‌ication — Former Government Lawyers
§1:73 Imputed Disqualif‌ication — Former Judge
§1:74 Organization as Client
§1:75 Run Conf‌licts Check
D. Evaluate Fee Sources
§1:80 Client as Sole Source
§1:81 Statutory Fee Recovery From Opposition
§1:82 Contractual Fee Recovery From Opposition
A. Initial Steps
§1:90 If Case Rejected
§1:91 If Case Seems Acceptable
B. Prepare for Case Conference
§1:100 Goals and Issues of Conference
§1:101 Do Further Research
§1:102 Construct Preliminary Case Plan
C. Consider Fee and Cost Arrangements
1. Preliminar y Considerations
§1:110 Obtain Agreement Early
§1:111 Types of Arrangements
§1:112 Anticipate Client Input
§1:113 Custom in Profession
§1:114 Personal Guidelines or Law Firm Policy
2. Factors in Selec ting Fee Arrangement
§1:120 Whether Client Is Plaintiff or Defendant
§1:121 Type of Case
§1:122 Likelihood of Recovery
§1:123 Size of Potential Recovery
§1:124 Client’s Ability to Pay
§1:125 Availability of Attorney Fees Award in Judgment
§1:126 Case’s Burden on Time and Other Resources
3. Time-Based (Hourly-Rate) Billing
§1:140 Practices and Procedures
§1:141 Advantages
§1:142 Disadvantages
4. Contingency Fees
§1:150 Practices and Procedures
§1:151 Advantages
§1:152 Disadvantages
5. Retainers
§1:160 Practices and Procedures
§1:161 Lump Sum Payments as Needed
§1:162 Regular Lump Sum Payments
§1:163 Types of Retainers
6. Other Fee Arrangements
§1:170 Fixed Fees
§1:171 Fixed Fee Paid in Stages
§1:172 Maximum and Minimum Fee Limits
§1:173 Combination Contingency or Fixed Fees
§1:174 Combination Contingency or Hourly-Billed Fees
§1:175 Shared Fees

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