Here is a tip that will improve the quality of your law practice and your life – look at the law first.
Oh, it is different in the run of the mill auto case or other cases that you routinely handle. And it is different if you have recently handled a case that presented the same issues. But unless the new case you have just been offered falls into one of the above senarios take a little time and confirm (or enlarge) your understanding of the law before you accept a new matter.
Why? The law changes – Tennessee appellate courts issue over 200 tort opinions a year. Moreover, as we get older and busier, our memory of what we think the law is can sometimes be just plain wrong. It is far better to spend a little time examining the law before we accept a case than it is to be surprised by a motion to dismiss.
In fact, I can say that one of two things is almost certainly true when a lawyer is surprised by a motion to dismiss. First, the lawyer did not do his or her homework. If a plaintiff’s lawyer is “pushing the envelope” he or she should not be surprised by a motion to dismiss and indeed should welcome it.
Second, a lawyer will be surprised by a motion to dismiss if it frivilous and therefore the lawyer had no reason to anticipate that it would be filed.
(There is one other possibility – the lawyer filing the motion is trying to modify or reverse existing law. That is exremely unlikely at the Rule 12 motion stage.)
It is hard to give advice or to make an intelligent decision about case acceptance without knowing what the law is or, as appropriate, what “holes” there are in the law that will have to be filled by your advocacy.
Furthermore, if you know that you are pleading a theory that is not within your typical practice area or you are “pushing the envelope” having a good handle on the law will let you can draft a complaint that will help you overcome a motion to dismiss. By saying that I am not suggesting that you create facts to overcome the Rule 12.06 motion. Instead, I mean that it is not uncommon for the law to require the use of certain words and phrases when attempting to fit your case within a certain cause of action. Therefore, if you know the elements of your cause of action and you know the words and phrases that have been acceptable to other courts you can do an appropriate fact investigation and, if the facts are present, plead the case accordingly.
Sure, many courts will let you amend your complaint to re-plead your case and that is a great safety valve to have available. But why not try to do it right the first time? Doing so will save you weeks (if not months) of time and will save you anxiety.
In conclusion, let me be clear: there is nothing wrong with “pushing the envelope.” My point is that you need to know four-corners of the “envelope” before you can know that you are pushing it. And there is nothing wrong with a lawyer branching out into a new practice area (although one may wish to consider co-counseling the case with a lawyer who is already familiar with the practice area) – just know what you are getting into before you get into it.