By Jeffrey T. Donner, Esq.

August 7, 2026

Most clients hire a lawyer because they want someone who will fight for them. That is perfectly understandable. A client who has been damaged, sued, accused, mistreated, or forced into litigation does not want a passive lawyer. The client wants a lawyer who understands the case, believes in the claim or defense, knows the rules, and will use every proper tool available to obtain the best possible result.

That is part of the lawyer’s job. A good lawyer should be willing to push hard. Litigation is adversarial. The other side usually has its own lawyer, its own version of the facts, its own financial incentives, and its own reasons to avoid responsibility. If a lawyer is unwilling to press the client’s position, challenge weak arguments, pursue discovery, prepare for trial, and create settlement pressure, then the client is not getting the representation the client needs.

But that is only half of the job. The other half is counseling the client. That part is often more difficult, because it sometimes requires telling the client things the client does not want to hear. The lawyer has to explain risk, weakness, cost, delay, proof problems, evidentiary issues, and settlement economics. The lawyer has to prepare the client not only for the best-case scenario, but also for the arguments the other side will make and the realities that can affect the outcome.

That is not negativity. That is lawyering.

A lawyer is not supposed to be a cheerleader. A lawyer can be optimistic, confident, and aggressive without pretending the case has no problems. In fact, the best advocacy usually requires a clear understanding of the problems. A lawyer who sees the weaknesses early can prepare for them, fix them where possible, and advise the client intelligently. A lawyer who refuses to discuss those weaknesses may keep the client happy for a while, but that is not the same thing as preparing the case.

Over the years, I have seen a recurring misunderstanding in litigation. Clients sometimes believe that the lawyer’s job is to be forceful enough to make the other side do the right thing. There is some truth to that. Pressure matters. Deadlines matter. Trial dates matter. Motion practice matters. A lawyer who does not apply pressure when pressure is needed is not doing enough. But pressure alone is not proof, and confidence alone is not evidence.

Civil litigation operates through rules. There are pleadings, discovery obligations, admissibility standards, burdens of proof, evidentiary objections, damages requirements, expert issues, motion practice, mediation, trial, and appeal. A lawyer does not simply announce what the client wants and then collect the money. The lawyer has to present a legally recognized claim or defense, supported by competent evidence, in a form that a judge, jury, mediator, or opposing counsel can evaluate.

That is where honest client counseling becomes essential. A client may say, “This is a lot of damage.” The lawyer has to ask, “How much, and how do we prove it?” A client may say, “My property was destroyed.” The lawyer has to ask, “What was actually damaged, what caused the damage, what needs to be repaired or replaced, and what will that work cost?” A client may say, “They should pay me a million dollars.” The lawyer has to ask, “What evidence supports that number?”

Those questions are not hostile to the client. They are not signs that the lawyer lacks belief in the case. They are the questions the other side will ask, the mediator will ask, and eventually the judge or jury may have to consider. If the lawyer waits until mediation or trial to confront those questions, the client may be surprised, frustrated, or unprepared. It is far better to have the hard conversation early, while there is still time to strengthen the case.

This is especially true in cases involving property damage, construction disputes, insurance claims, business losses, or any other claim where the damages number must be proven with documents, estimates, expert testimony, business records, or other objective evidence. A client’s frustration may be completely legitimate, but frustration is not a damages calculation. A property may be expensive, and the damage may be real, but the value of the property does not automatically establish the cost of repair. A high-end condominium, for example, may involve expensive materials, building access issues, specialty labor, and substantial repair costs. But the fact that the property is valuable does not eliminate the need to prove the actual scope and cost of the repairs.

A lawyer cannot manufacture that evidence. The lawyer can organize the evidence, present it, argue from it, and use it to create leverage. But the lawyer cannot personally become the contractor, engineer, accountant, appraiser, treating physician, public adjuster, or fact witness. If the case requires a contractor estimate, the client needs a contractor estimate. If the case requires medical proof, the client needs medical evidence. If the case requires lost-profit proof, the client needs records and analysis. If the case requires causation testimony, the client needs evidence connecting the event to the claimed loss.

This is why lawyers sometimes give clients homework. That can sound strange to a client who believes the lawyer was hired to “handle the case.” But litigation is not magic performed by the lawyer in another room. The lawyer has legal skills, procedural knowledge, advocacy experience, and judgment. The client has the facts, records, history, witnesses, documents, and access to many of the materials needed to prove the case. When a lawyer asks the client to gather records, obtain an estimate, identify witnesses, explain prior payments, or prepare carefully for deposition, that is not laziness. It is part of building the case.

There is another reason this counseling matters: the other side is not required to accept the client’s view of the case. The defense may attack causation. It may argue that some claimed damages are unrelated to the event. It may argue that part of the requested work is an upgrade rather than a repair. It may argue that the estimate is inflated, that the witnesses are biased, that prior payments must be credited, or that the client cannot explain the damages clearly. The plaintiff’s lawyer does not have to agree with those arguments, but the lawyer has to anticipate them.

In my view, one of the lawyer’s most important roles is to identify the problems before the defense does. That does not mean adopting the defense position. It means understanding the battlefield. If the other side is going to argue that a damages estimate is unsupported, the answer is not simply to insist that the estimate is correct. The better answer is to develop stronger proof. If the other side is going to argue that the client is seeking upgrades, the answer is to separate repair items from discretionary improvements. If the other side is going to argue that prior payments reduce the claim, the answer is to analyze those payments and explain what damages remain.

This is not pessimism. It is preparation. A lawyer who prepares only for the client’s preferred version of the case is not really preparing. Real preparation requires seeing the case from both sides, evaluating how a neutral decision-maker might view the evidence, and then deciding how to present the client’s position as strongly as possible.

The same principle applies to settlement. Many clients understandably focus on the total settlement number. If a defendant offers a certain amount, the client may initially think of that number as “my money.” But in many cases, especially contingency-fee cases, the gross settlement number is not the amount the client receives. There may be attorney’s fees, litigation costs, expert fees, public-adjuster fees, liens, prior payments, deductibles, credits, or other deductions. Those items can materially affect the amount the client actually receives.

That does not mean the client is being tricked or that the lawyer is taking something away from the client. It means that litigation has transaction costs. In many cases, without lawyers, adjusters, experts, and the litigation process, there would be no recovery at all, or the recovery would be much lower. But the cost of obtaining the recovery still has to be understood. A client who evaluates only the gross number may be disappointed later when the net number is calculated. A lawyer should try to avoid that surprise by explaining the economics before the settlement decision is made.

I often think of a case as having several different numbers. There is the gross damages number, which is what the client claims was lost or what the client says it will cost to fix the problem. There is the recoverable litigation number, which is what can realistically be proven and recovered after considering defenses, evidence, causation, prior payments, credits, and risk. There is the gross settlement number, which is what the other side is willing to pay to resolve the case. Finally, there is the net-to-client number, which is what the client actually receives after fees, costs, and deductions.

Clients need to understand that those numbers are not the same. A case may involve $800,000 in claimed damages, but that does not automatically mean the client will receive $800,000 in hand. A settlement may be reasonable even if the net recovery is less than the client hoped. Conversely, an offer may be too low even if the gross number sounds large. The only way to evaluate the decision responsibly is to understand the evidence, the risks, the costs, and the likely net result.

This is one of the hardest conversations lawyers have with clients. Most clients do not want to hear about risk, costs, deductions, or weaknesses. They want to hear that they are right and that the other side will have to pay. That is a normal human reaction. But the lawyer’s duty is not limited to emotional reassurance. The lawyer has to help the client make informed decisions.

That is particularly important at mediation. Mediation is not a trial, and it is not a morality hearing. It is a settlement process. The mediator will usually test both sides. The defense will emphasize its best arguments. The client will hear things that may be frustrating or unfair. The settlement numbers may not match the client’s expectations. If the client has not been prepared for that process, the mediation can become emotional rather than strategic.

A well-prepared client understands that settlement is a business decision made under uncertainty. The question is not whether the offer gives the client everything the client wants. The question is whether the offer is reasonable compared to the risks, costs, delays, evidence, possible trial outcomes, and net recovery. Sometimes the correct answer is to reject the offer and keep fighting. Sometimes the correct answer is to accept an imperfect settlement because the risks of continuing are greater than the likely benefit. Either way, the client should make that decision with clear advice, not false comfort.

A lawyer also has to be careful about the temptation to equate activity with strategy. Filing motions, sending aggressive letters, threatening sanctions, or creating last-minute pressure can sometimes be useful. There are times when motion practice is necessary and effective. But not every problem is solved by filing another motion. If the central issue in a case is damages proof, then a motion may not solve that problem. If the real issue is the absence of a reliable estimate, the answer may be to obtain a reliable estimate. If the real issue is a weak witness, the answer may be preparation, supplementation, or a different witness. Aggression should serve strategy, not replace it.

A lawyer who says “we need better evidence” is not refusing to fight. That lawyer is explaining what is needed to fight effectively. The goal is not to appear aggressive for its own sake. The goal is to build a case that can withstand attack. Sometimes that means pushing the court for a trial date. Sometimes it means taking a deposition. Sometimes it means moving to compel. Sometimes it means telling the client, plainly, that the current proof is not good enough and that more work needs to be done before mediation or trial.

This kind of counseling should often be put in writing. Important advice can be misunderstood or forgotten, especially in stressful litigation. A client may remember the optimistic parts of a conversation and forget the warnings. The lawyer may think a risk was clearly explained, while the client later insists it was not. Written advice creates clarity. It allows the client to review the issue, understand the recommendation, and make decisions with a better record of what was discussed.

That does not mean every email to a client should sound defensive or pessimistic. Tone matters. A lawyer should not write to a client as if preparing for a future dispute with the client. But when an issue is important, the advice should be clear enough that nobody later has to guess what the lawyer recommended. The lawyer can be supportive and direct at the same time. The message can be, “I am on your side, and because I am on your side, I need to tell you what we have to prove and what we still need to do.”

After more than 27 years of practicing law, I have learned that many of the most important moments in a case happen outside the courtroom. They happen in the conversations where the lawyer explains the proof problem before mediation. They happen when the lawyer tells the client what the other side will argue. They happen when the lawyer separates emotion from evidence and gross recovery from net recovery. They happen when the lawyer helps the client understand that a lawsuit is not a lottery ticket, but a process for resolving disputed claims under rules of law and evidence.

Clients deserve lawyers who will fight for them. They also deserve lawyers who will tell them the truth. Those duties are not in conflict. The lawyer who identifies weaknesses is not betraying the client. The lawyer who explains settlement economics is not undermining the case. The lawyer who asks for better documentation is not being lazy. Those are all parts of competent representation.

The best lawyers combine advocacy with judgment. They push hard, but they do not pretend. They believe in the client’s case, but they still prepare for the other side’s arguments. They create pressure, but they also build proof. They understand that confidence is useful, but that evidence is what ultimately matters.

That is the difference between cheerleading and lawyering. Cheerleading tells the client that everything will be fine. Lawyering explains what must be proven, what risks exist, what choices have to be made, and how to prepare the case as effectively as possible. The client may not always enjoy that conversation, but the client is entitled to it.

That is what real advocacy requires.