Several years ago I crafted an article for National Bus Trader describing the bad habits and practices of less-than-desirable attorneys (see “The Seven Deadliest Sins” in National Bus Trader, June, 2005). These characterizations were from the perspective of a technical expert. In this article, I will present them from the perspective of a you – a potential co-defendant in a lawsuit.
What are the priorities of any specific attorney? Do they put the insurance company first, put the insured first, put their own interests first, or some combination thereof? Before providing the clues to recognizing a good attorney, it must be noted that many less-than-desirable attorneys are not only somewhat self-serving but they thrive by letting defendants’ attorneys (almost universally engaged by a defendant’s insurance carrier) know this. One does not need to “spot” such attorneys. Instead, they demonstrate their intentions by their performance and behavior in “resolving” cases.
There are only two ways for a plaintiff’s attorney to earn money from a case:
- Conduct it properly, particularly with respect to effort, and perform the “steps” in the proper order.
- Signal to opposing counsel that they are willing to settle for peanuts as long as the settlement is agreed upon before they have to do any significant work
In the latter case, particularly common to attorneys in major cities and other high-density areas where clients are almost endless, these attorneys effectively make their money by volume. Instead of spending hundreds of hours on perhaps four or five cases a year, and small amounts of time on a few dozen other ones, these attorneys may become involved in hundreds of cases a year. This should not be surprising since the vast majority of many tasks are performed by paralegals, who earn a tiny fraction of what their attorneys do.
Otherwise, because defendants’ attorneys – i.e., your attorneys — know who these lawyers are, they know that if they offer them a fraction of what a case is likely worth early in the process, they can settle it for a tenth of what it is worth. This is only because, early in the case, the plaintiff’s attorney has done practically no work. So, if one has enough cases, it pays off far better to earn $10,000 on 100 cases worth $100,000 each (most plaintiffs’ attorneys operate on a contingent fee basis whereby they recoup a third of the total settlement or damage award) than it does to earn a third of the $100,000 on five major cases by working hard on them, and spending lots of time and money in the process.
Of course, such an approach is highly unethical. But such attorneys’ clients have virtually no recourse. Their attorneys articulate a lot of malarkey to convince them that their case has weaknesses, that the defendant’s counsel was unwilling to settle for very much because of these weaknesses, and that if the case proceeded to court, there would be a high likelihood that the plaintiff would lose. Few clients know enough to dispute this advice or insist that the case proceed to trial – which is their right, and which a savvy client should do. Unfortunately, if a client accepted the grossly inadequate settlement and later learned of this situation, he or she would have a difficult time finding another attorney to file a malpractice case against the original attorney.
Bad Habits, Bad Timing and Bad Sequencing
Apart from the outright worst attorneys, it is easy for a defendant’s attorney to spot a lazy, cheap or incompetent one. The principal clues about this emerge from evaluating the plaintiff’s counsel’s level of effort, and the sequence in which things are done. As a starting point of this evaluation, good plaintiffs’ lawyers generally do the following (beyond filing the reams of paperwork prepared mostly by paralegals and legal secretaries):
- File all documents in a timely manner
- Engage a genuine expert almost immediately
- Submit a detailed and technically-specific request for the production of documents (referred to casually in the legal world as “discovery”)
- Submit detailed and technically-specific sets of interrogatories (i.e., question that must be answered), requests for admissions and similar “motions”
- Postpone any and all depositions – particularly that of the attorney’s client – until most existing “discovery” documents are received, and reviewed by the attorneys’ expert
- Sequence the depositions intelligently
- Use the depositions to effectively win the case rather than to figure out what happened
Through this process, a good attorney sends multiple “signals” to the defendant’s counsel that he or she is serious, knows what he or she is doing, and mostly, is prepared to put a great deal of effort into the case. Some of these signals include:
- Production of a detailed Request for Supplemental Discovery – a request that could not possibly be created by a generalist attorney (or even a specialist in a given field), but instead, provides evidence that a genuine expert witness was involved in this effort, and that such an individual will be advising the attorney throughout the process of resolving the case
- Preparation of a detailed technical report – particularly in a state where the deposition of expert witnesses is not allowed (e.g., New York, Pennsylvania, Massachusetts and Oregon) – while it is often a double-edged sword to submit a report in a state where depositions will be taken, since the report gives the defendant’s counsel a chance to prepare for the deposition of the plaintiff’s expert rather than be surprised by the expert’s presentation of his or her opinions during the deposition
- Fighting for most of the documents that the defendant’s counsel generally – and usually speciously – objects to handing over (this is known as “stonewalling”).
- The intelligent sequencing of depositions, but only after receiving and reviewing the documents requested in the discovery process
Regarding the third of these steps, as noted, most defendants “stonewall” the plaintiff’s counsel about most discovery items. So the plaintiff’s counsel must argue with the judge about (a) what each specific request means to the case, (b) why this request is reasonable, and (c) why he or she deserves to get it. If the plaintiff’s counsel has engaged a genuine expert, that expert will provide this information, about every discovery request that is not obvious, to the attorney so that he or she can use it to overcome the stonewalling and convince the judge to order the defendant’s counsel to turn the documents over.
Keep in mind that a genuinely qualified expert knows almost every document that the defendant should have. So when this information is shared with his or her attorney, the defendant’s attorney faces a lose-lose situation: If the information is not submitted, the defendant looks negligent for not having it. If the information is turned over, the plaintiff’s attorney and his expert can use it to prepare for ripping apart the defendant’s “deponents” (i.e., those members of the defendant’s management staff, driver, and witnesses with initial accounts favorable to the defendant).
Blood in the Water
The term “shark” is often used to characterize some of the least-desirable attorneys. This is really a poor and sloppy use of the term. This is because a sharp attorney – whether good or bad – can “smell” or sense things. The smell or sense that frightens the defendant’s attorney the most is the smell of effort. When there appears to be little effort, the defendant’s counsel usually recognizes it, and knows he or she will have an easy time completing work on the case, will not likely have to offer very much in settlement, and has a good chance of winning the case – even where the facts are not in the defendant’s favor.
As the defendant yourself (i.e., the readers of this article are almost always potential defendants), it is important to keep track of your attorney’s perceptions of the plaintiff’s counsel’s effort, and to make sure that your attorney shares them with you. This is particularly true because the attorney representing you is rarely your expert. He or she (and his or her firm) is really the attorney of your insurance carrier, and is serving your carrier, not you.
Needless to say, your carrier’s agenda may overlap yours, but otherwise, it is very different. That agenda rarely factors in the commercial consequences of your settling or losing a case – such as your company being “black-balled” by certain types of potential customers if word of the case becomes public. It will become public if the case proceeds to court, and you are not afforded the confidentiality of most settlement agreements. On the other hand, settling a case you should fight may be the best choice for the immediate case-at-hand. But it sends a message of weakness to other plaintiffs’ attorneys who may sue you, or other members of your industry (both your competitors and your suppliers), in the future.
Platitudes and Precautions
This small package of advice should make it clear that once an attorney is representing you, you dare not relax. Instead, you must remain involved, insist on being informed as the case moves forward, and make it clear to your attorney that if you are not satisfied, his or her client – i.e., your insurance carrier – will not be your carrier in the future.
As I have noted many times in my 13 years of monthly National Bus Trader columns on this subject, a small percentage of attorneys are honest to the bone, and work tirelessly in your interests. But this is far more true on the plaintiff’s side of a case than on your side. There are obviously exceptions to this rule, and I have assisted many fine, hard-working defendants’ attorneys who cared considerably about the defendant’s agenda as well as that of his or her insurance carrier. Just the same, it is sometimes hard to know to what degree this is the case. So, again, be wary and remain involved and vigilant. There is a reason there are no firemen jokes, but thousands of lawyer jokes. Do not allow yourself to become the victim of an attorney who is the butt of one.
The opinions expressed in this article are that of the author and do not necessarily represent the opinions of National Bus Trader, Inc. or its staff.