Taking the Case

• Author: Jennifer Duncan-Brice
• Pages: 9-60

TAKING THE CASE

1-1

CHAPTER 1

TAKING THE CASE

QUICK VIEW

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.

TAKING THE CASE

Illinois Pretrial Practice 1-2

TABLE OF CONTENTS

I. INITIAL CLIENT CONTACT

§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

II. CASE ASSESSMENT AND VALUATION

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

TAKING THE CASE

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

III. AFTER ASSESSMENT AND VALUATION

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