Civil Litigation : Recent Shifts in Approach and Emphasis

Most of us were taught at one time of another that, for every action, there is a reaction. An important corollary of this axiom is that the consequences of dramatic change are usually not one-time phenomena. Instead, additional consequences tend to follow in waves. For those who consider the 2008 disasters in the housing and mortgage industry, the banking sector and the striking rise in "officially-recognized" unemployment that followed immediately as the beginning of the collapse of our society as we knew it, it would be naïve to think that wave upon wave of more subtle but equally devastating consequences would not follow. As one might expect, these consequences would encompass an extraordinary diversity of scenarios.

Second Wave Consequences on Lawyers

To begin with, legal practices began to change almost instantly, to some degree, from first wave events, as hundreds of thousands of attorneys lost money from the stock market’s crash, and/or lost pension funds from some of the market’s practices that to this day remain unpunished and are still condoned. But I myself began to notice more recent changes in attorney practices as "second wave phenomena." Some of these changes cannot help but have a bearing on the way lawsuits are handled, much less on their outcomes, much less on the justice involved, such that it is. Regarding the latter, many a lawyer has opined that courtrooms are not a place where one goes to receive justice. They are a place one goes to do business.

A small sample of some of the changes I have begun to notice reflect "second-wave" reactions of this group of individuals, particularly in the world of civil law where my forensic practice mostly lies, and far more for attorneys presenting the plaintiff’s side of a case. These changes include:

  • Attorneys are more reluctant to engage experts. Many attorneys resent having to engage experts in the first place, considering us overpaid "expediencies," rather than sources of expertise, steeped in knowledge, and capable of penetrating and often mesmerizing analysis. So where it is possible to try a case without an expert, Today’s lawyers are more apt to do so. This is most easily possible in cases that do not require much expertise to begin with – or at least those that involve scenarios which the attorney perceives do not involve much expertise. Examples in transportation might include themes like on-board slips-and-falls, passengers falling off stepwells, negligent passenger handling and assistance, or even passenger molestation – whereas the latter is actually one of the most complex (and most common) transportation incident scenarios, and one that requires an extraordinary mastery of monitoring (among other operating functions) on the part of the attorney’s expert.
  • Attorneys increase their preference for the cheap and local. When damages are huge, and negligence likely, savvy attorneys will import an expert from Pluto, if that is where the best one resides. One illustration of this is my own practice, which as a New Yorker, is largely West Coast-oriented. But when damages are marginal, attorneys look for someone cheap and local – even though when victorious, the cost for these experts is deducted from the victim’s, or plaintiff’s, share of the damage award. Still, struck by second-wave economic phenomena, many attorneys are not willing to take the risk of paying in advance for these services. For defendants and their insurance carriers, this means that the plaintiff’s counsel is more likely to engage a vastly-inferior expert, particularly in cases where the expertise is unusual (as it is in my case). In contrast, while there is a dramatic difference between the best and the worst, experts in accident reconstruction are a dime a dozen: Tens of thousands of retired police and highway patrol officers roam every town and village, often with a history of investigating thousands of accidents. Few of them are engineers. And most of them were, and are poor accident investigators. Regardless, if they bother, attorneys can usually find an excellent reconstructionist in their own backyards, even while most of the competition is borderline.
  • Attorneys engage experts later in the case. The preferred goal of this approach is to settle the case before the attorney has to engage an expert at all. This approach, of course, has its downsides. For example, instead of the expert having a chance to examine a vehicle and/or incident scene before the driver and his or her management are deposed, these depositions are generally taken first, and the attorney is greatly handicapped by the untaken inspections obviously not yielding any information. If and when the case fails to settle, the attorney then (often reluctantly) engages an expert, "discovery" is often closed, it is too late for conducting a vehicle inspection (whereas an incident scene can almost always be inspected), and that expert then plows through a pile of marginal depositions that often miss the point, plus a lot of ancillary material of questionable value. Not only does this practice place the defendant’s attorney "on notice" that he or she is facing a cheapskate, but it signals the marginal commitment of the plaintiff’s counsel to his or her client’s case, and the fact that he or she is more likely to settle it for less than it is worth.
  • Attorneys have their experts do less work. Like the other dynamics, this one too operates in favor of the defendant’s attorney. When I experience this phenomenon, I am often astounded by the things I am not asked to do, or in some cases, ordered to not do. The latter includes not only examining vehicles and incident scenes, but I have actually been admonished for spending too much time analyzing someone else’s inferior photographs (and in the absence of my own inspection, trying to make sense out of them). Otherwise, while report-writing has its pros and cons, eliminating the preparation of a report is almost always a component of reduced work. Typically, if the vehicle or incident scene must be examined if the case does not settle, attorneys instruct their experts to conduct such inspections on the same trip on which that expert’s deposition is scheduled to occur – which is long after other witnesses’ depositions have been taken without the expert having examined the vehicle and incident scene prior to these depositions.
  • Attorneys stifle creativity. As I have argued many times in former NBT articles, an expert’s greatest asset is not his or her credentials or testimony skill or savvy, but rather, his or her analytical ability. In my experiences, an abnormally large percentage of important revelations come from the freedom that allows me to find them. When attorneys give their experts "less rope," and instead, assign them to a narrow set of small tasks, that creativity is greatly limited, and the analysis that results is compromised, often considerably.
  • Shifting Research Sources. Unless an attorney has used an expert before that he or she likes, he or she would normally find one either through a hard-copy directory, or via a referral service. This is changing rapidly, as attorneys are increasingly locating and evaluating experts by cruising the internet – principally through As a consequence, the better experts (many of whom, like myself, at least have websites) are upgrading them (as I am), and including changes that improve the chances that the person searching for an expert will find their website, and find it high on the list (this is known as search engine optimization, or SEO). While this change may simplify things, and lower an attorneys costs by avoiding the fees charged by referral agencies, it will also benefit defendants’ attorneys more, since the website of their opponent’s expert will more likely be jam-packed with information about that expert and his or her experiences. Keep in mind that plaintiffs’ attorneys almost always engage experts, whereas the defendants’ counsel has his client’s endless army of planning and operating personnel at his or her fingertips, much less at no-cost.

The Smell of Effort

In outlining these changes and their likely consequences, I am speaking mostly about changes on the plaintiff’s side of a case. The deficiencies of defendants’ attorneys that I have described in former NBT articles appear to not have changed much during the "second wave" – largely because the defendants’ attorneys are engaged by insurance companies – companies virtually immune from regulations, who enjoy an impunity from criminal prosecution, and for whom insurance premiums are little more than "seed money" for making investments in other areas (witness the bail-out of AIG). Thus, all these changes tend to provide advantages to the defendant’s counsel.
As I tell most attorneys whom I feel are willing to listen, and as I have written about often in the pages of NBT, the most important element in a lawsuit is not the attorney’s brilliance or the expert’s knowledge. It is not necessarily even the facts. What is most critical is the level of effort put into the case. With few exceptions, effort wins cases. Beyond that, the more effort put into a case, the higher the settlement figure is likely going to be, and the higher the damage award is likely to be if the case proceeds to the trial stage. Defendants’ attorneys are extremely keen to these dynamics. Some of these dynamics are obvious because they are documented by evidence. (For example, opposing counsel are permitted to review an expert’s invoices to his or her own counsel.) Or the level of effort becomes apparent when an expert is deposed, and asked what tasks he or she has performed.

On the intimidating side, a high level of effort and the commitment to it of the plaintiff’s attorney is apparent from a lengthy and enlightened Request for Supplementary Discovery – a Request containing items that a normal attorney would never know even existed were it not for the involvement of an experienced expert that he or she bothered to listen to. Or similarly, it becomes apparent when the expert’s deposition reveals a deep involvement in analysis. But both these efforts cost money.

Not only does effort win cases, but defendants’ attorneys can smell it, can feel it, and as noted, can detect it — or the lack of it — from a number of fairly obvious sources. In Today’s environment, I would not be surprised if insurance carriers did not investigate the finances of the opposing counsel’s firm, and determine whether or not it has both the cash and the cash-flow to prepare for the case optimally ("properly" is too "loaded" a word to characterize something like case preparation). Small firms are particularly vulnerable to such dynamics when they find their attorneys involved in a complex and costly case. But large firms can also be adversely affected, as every one of their small army of attorneys may not be doing well, or the volume of profitable cases the firm in general has may be low.

Balancing the Scales

At the accident or incident end of the scale, the state of our economy tends to induce the commission of an increasing number of errors and omissions, which naturally translate into more and more accidents. But at the other end of the scale – the litigation environment – the dynamics of the "second wave" will increasingly benefit defendants. I am not stating this so that you can, or should, lower your level of vigilance or pay less attention to your passengers, vehicles or other responsibilities. Instead, I am saying that if you do, in Today’s environment, you may pay less for doing so than you might otherwise. But you will pay more often.

While it is true that these dynamics tend to favor defendants’ attorneys, and may induce many plaintiffs’ attorneys to often settle cases for less than they are worth, these dynamics may not balance off the number of accidents and incidents you have if you let your guard down because of them. As I have said in NBT and elsewhere over and over again, one does not save money by winning lawsuits. One saves money by not having accidents. In the end, safety always trumps liability. Knowing this, it should not be hard to figure out where to invest and focus your resources. Thus, if you understand the dynamics, you should not allow the consequences of their "second wave" to compromise the safety-related characteristids of the your operation.

Publications: National Bus Trader.