Like the badges you may have earned and proudly worn on your scout uniform, the cases you accept and litigate must have merit. But what does it mean to have a meritorious claim or contention? ABA Model Rule 3.1 states, in pertinent part, that “a lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.” Let’s dig into this s’more. 

Comment 1 of Rule 3.1 reminds lawyers of their duty to use legal procedure for the fullest benefit of the client’s cause, but it cautions them not to abuse it. Although both procedural and substantive law defines the limits within which a lawyer may act, counsel is permitted to account for the “law’s ambiguities and potential for change” when determining the proper scope of advocacy. In other words, attorneys may operate in the gray areas of the law when considering the viability of a client’s claim. However, before you get into a sticky situation, consider these tips for properly assessing the merits of a potential claim:

• Vet the client – To avoid being retained by a “professional plaintiff,” be sure to adequately vet your potential clients. Check local dockets to see the nature and number of cases they have filed. You may also discover they have attempted to unsuccessfully bring the same lawsuit with another attorney.
• Investigate the facts – Gather as much information about the alleged facts and circumstances of the potential client’s case before you agree to represent them. Review available police or incident reports and check for any local news coverage. Under Rule 3.1, an action is not frivolous merely because the facts have not been fully substantiated or because the lawyer expected them to develop through discovery. However, conducting your due diligence to the extent you can upfront may save you time and money in the long run.  
• Research the potential causes of action – Once you have obtained all the information you can about the incident that led to the client’s injuries, take the time to thoroughly research the potentially liable parties and causes of action. Not only can you evaluate the merits and strength of the claims, you can get a head start on building a robust case on behalf of your client.

If you do take a case in which facts or other evidence is later discovered which impacts the viability of your client’s claims, rest assured, you are not up a creek without a paddle. Promptly advise your client that you can no longer pursue the specific claims in light of this newly discovered information. Depending on the stage of the case, you can stipulate to the dismissal of the now frivolous claims, or it may be necessary for you to withdraw from the case to avoid advancing frivolous claims. If you must withdraw, properly document the circumstances with an appropriate withdrawal letter to your client upon receipt of an Order on your Motion to Withdraw from the case.

As you navigate the challenges of personal injury work, remember to trust your moral compass to stay on the path of advancing only meritorious claims.