An experienced legal practitioner will recall ample experiences where they had to explain that a client’s subjective feeling towards a matter or towards the opposing party is not the most significant consideration to determine the merits of their case.
Any first consultation should involve an extent of orientation for the client and their claim. One should orientate the claim in terms of existing law. The subjective feeling of the client may have some impact on the matter, but it does not predominantly determine a person or entity’s legal position.
A good legal practitioner is able to react humanely and emphatically to a client’s version, yet ensure that their legal advice is based on sound legal principles and legal precedent rather the client’s feeling as to how the claim should be formulated and in which quantity.
The same applies to criminal law matters. A legal practitioner should be transparent and inform their client of a good and a bad defence. It may be best to settle with the state rather than to vehemently defend a claim merely because the client felt emotional about the matter.
How does a legal practitioner determine a client’s legal position?
A good place for any legal practitioner to start, if not well-versed in a particular field of law, is legal sources. One may approach most legal questions by ensuring that you research the question. The facts of the particular matter at hand should be compared with existing law and with other sources of law to orientate the particular matter within the bigger sphere of the particular claim.
As medical practitioners do not advise patients to research medicine without a proper medical qualification as basis to the research, legal practitioners also do not advise clients to do research on their legal position without a proper legal background and legal qualification.
Our legal system places a strong emphasis on legal precedence and therefore attorneys, advocates, magistrates and judges are largely bound to what was decided in previous cases and how such decisions relate to the facts at hand. Our legal system, fortunately, cannot base its decisions on arbitrary and emotionally-driven perceptions.
In some cases, courts will decide to develop or change an existing legal position by making a new decision on a legal topic. The development of law is a specialised and rare occurrence which should not form the basis of the general legal practitioner’s approach to clients in general.
A good example of how a subjective feeling may not overlap with the actual legal position is that of defamation. Clients are generally highly upset and feel a strong sense of injustice in respect of their defamation claim. The strong subjective feeling does not, however, ensure a strong case on the side of the client. Several aspects are to be considered in the case of defamation. The statement must be false and not have been made in the interest of justice but one must also prove the quantum claimed.
Therefore, even if defamation was extensive, the claim amount is negligible if the client cannot show an actual loss or a probable future loss in monetary terms as a result thereof. The subjective feeling in itself has some value, but only has the value of about a tenth of claims where an actual loss could be proven.
Legal practitioners wear many hats when practising law, but the most prominent should always be that of “lawyer”.