The Seven Deadliest Sins

Working in the passenger transportation field, you may occasionally have to deal with personal injury attorneys. Because this experience usually follows a serious accident, you will not enjoy it. Because an insurance company underwrites your risk, you will also not select the attorney. You will certainly not select the attorneys assisting the victims.

While even a poor plaintiff’s attorney can cause you great difficulty, having a terrific one on your side may save your business and your career. A bad one may ruin your life.

Mensches and Monsters

You have all heard the jokes:

  • Q: What do you do when you come upon an attorney buried up to his neck in sand?”
  • A: “Get more sand.”
  • Q: “What is the difference between a rooster and a lawyer?”
  • A: “The rooster is always clucking defiance.”
  • Q: “What is the difference between a lawyer and a pool of sharks?”
  • A: “The pool.”

In truth, a lot of attorneys deserve better treatment and more accurate characterizations. Good attorneys do not make money; they earn it. The best are intensely honest. Many perspire more for their clients than for themselves, and often more than their clients deserve. Many attorneys are tireless. And many care a great deal about justice, and take considerable measures to facilitate and preserve it. Notwithstanding the best and the brightest, however, the sharks own the pool.

Since your counsel will be selected and paid by your carrier, you may think there is little you can do if and when you find your representation lacking. This is not necessarily so. But you must recognize deficiencies in order to complain about them.

Outlined below are my pet peeves about attorneys as both an expert witness and, occasionally, a client. I am sure attorneys have a similar list for experts. Many may apply to me: We care too much about details. We read too slowly. We talk too fast. Our rates are too high. We spend too much time. We cannot express ourselves in simple sentences. And we insist on knowing everything. In short, we are an overpriced, necessary extravagance whose importance to a case has been exaggerated because jurors watch too much television. Mea culpa. But this is my column, and my turn to gripe. Here are my biggest complaints, in reverse order of importance.

Sin #7: Starting Too Late. The nanosecond some passenger catches his hangnail on a seat cushion, you know you are going to be sued. So why does your attorney engage an expert years later, only after the victim’s attorney has filed the suit, bludgeoned you and your staff with impossible questions, and examined every nook and cranny of your operation? Tradition. Whoever said, “The best defense is a good offense” never practiced law. At least not in this country.

When I am engaged early by defendants’ counsel, I may be able to identify several other parties genuinely responsible for the incident. When engaged really early, I may be able to accomplish this before my client even receives the plaintiff’s Complaint. When engaged much later, I may discover these parties only after the deadline has passed for filing against them. As a result, plaintiff’s counsel is left to fire at what is in his or her sights: You. Your counsel can only point to other parties as a “third chair.”

Sin #6: Playing Ostrich. I am continually astounded by defendants’ failures to discipline, or even reprimand, drivers for the most stunning acts of recklessness. Presumably, this tacit approval is designed to send a message to jurors that the driver’s conduct was appropriate. I suspect such strategies are usually devised by the defendants’ attorneys. This ploy almost never works. Instead of “containing the negligence” at the driver level (where the defendant may be responsible for it only through the doctrine of respondeat superior), the plaintiff’s attorneys and experts direct the blame toward the highest rungs of the policy-making and management hierarchy, where jurors are likely to be far less tolerant of incompetence, and far less forgiving: The defendant not only still employs this nincompoop, but condoned his negligence!

Sin #5: Thriftomania. While penny-pinching by insurance carriers may influence it, a common defendant’s attorney’s approach to a lawsuit is to examine the Complaint, respond to the questions (these are called interrogatories), arrange a few depositions, and bludgeon the plaintiff and eyewitnesses into submission. This technique is often effective. Many witnesses do not know where their observations end and their extrapolation begins Unfortunately, when the facts are presented clearly by the plaintiff’s expert, juries tend to care little that other witnesses are stupid and inarticulate. After all, they watch witnesses get tricked every night on TV.

In 35 cases alone involving crossing accidents, I have only once successfully convinced my counsel to invest in a computer animation. I have never been able to convince one to invest in the handful of bleacher seats it would take to induce a den of cub scouts to build a scale model of the intersection (like the model railroads filling their basements). Forget about overhead helicopter videos of traffic flow. In the one case where my attorney blew up a simple life-size photo of the front of a bus, we won $7.5 million.

Defendants’ attorneys will certainly impress the carrier when they dispose of a case efficiently and cheaply. Of course, when this strategy backfires, the attorneys simply move on to the next client not yet so disappointed. The underwriters are left holding the bag, and the defendant finds himself now paying a small fortune in premiums – if he can even obtain coverage. Remember: Apart from your “track record” of pay-outs, your operation’s safety capabilities are close to irrelevant to your underwriter. Instead, remaining in business hinges largely on the outcome of your lawsuits. When your under-working, under-spending attorney loses your case, guess who ultimately pays for it?

Sin #4: Ego Astigmatism. Given enough sodium pentothal, I suspect most attorneys would rank the importance of key variables in a lawsuit’s success as: (1) attorney skill, (2) whim, (3) facts and (4) expert witness skill. This hierarchy is seriously distorted and hopelessly naïve – not to mention the insult it represents to judges and juries. In contrast, I would rank these factors, in order of importance, as: (1) effort, (2) facts, (3) attorney skill and (4) expert knowledge. Not only does effort trump the others, but an exhaustive effort enhances the degree to which the facts matter. Acknowledging the lesser importance of experts in this hierarchy, I also suspect that most attorneys consider the primary value of an expert to be his or her credentials and testifying skill. In contrast, a good expert’s paramount contribution is analysis. If this analysis is thorough and competent, most cases are won or lost long before they reach the trial stage. Once a good expert’s work is done, opposing counsel can smack him in the head with a board, and he can verily drool on the witness stand. The case is made by presenting evidence and through the cross-examination of the opposing parties’ witnesses. Expert testimony is frosting. Were it not, more than nine of my 175 cases might have gone to trial.

Sin #3: Cheating. Particularly as bar associations are reluctant to even investigate attorney misconduct, much less sanction it, cheating is rampant. It is also usually counterproductive. One of the most common techniques is stonewalling – a defendants’ counsel favorite. This approach generally backfires when plaintiff’s counsel engages a competent expert familiar with the landscape, who knows every last document available, has scores of each type from other cases, and often has copies of the same defendant’s documents from prior cases. Knowing what is available, the expert can equip his counsel with the ammunition to persuade a judge to rule in the plaintiff’s favor.

Most judges also have a low tolerance for shenanighans. I have seen more than one attorney fined outright, and have seen numerous motions go against others. One judge was so outraged by opposing counsel’s conduct that he “struck” her expert witness – leaving her with no one to rebut my testimony.

Another ploy of crooked attorneys is to misrepresent an expert’s participation” by “designating” yet never “engaging” him. Instead, these attorneys interview the expert, solicit his curriculum vitae, submit it to opposing counsel, and then use the faux-commitment as leverage to extract a settlement. Like many savvy experts, I never forward a CV until given the identity of opposing counsel – a sound rule to follow anyway in order to avoid conflicts. As the ink is drying on this column, I have two attorneys on their way to disbarment for this practice – and would probably have a dozen more so destined if lazy and arrogant defendants’ attorneys had returned my phone calls.

Another trick employed by some attorneys is to solicit CVs from all the qualified experts they can find, engage none of them, wait for opposing counsel to engage one, and then file a protest – claiming that the expert was privy to confidential information about the case from discussions with the original counsel. This practice is known as “freezing” the experts. In the small niche environment of forensic work, it is not uncommon for an expert to be contacted by both (or even multiple) parties. A year ago, I was victimized by this very practice when, intimidated by it, plaintiff’s counsel was stupid enough to dismiss me rather than contest the objections of defendant’s counsel. These things catch up with attorneys: I recently accepted another case against the very same defendant’s attorney. While my integrity constrains my zeal, I am salivating for the case’s completion so that I can purchase yet another ticket on the disbarment bus for yet another crooked attorney.

Sin #2: Thinking with Crayolas. I have never gotten used to attorneys who begin discussions with statements like, “I want to use you for X and Y” My typical response is, “Do you not care if the issues are A and B?” I am similarly confounded when, after I have read a box of material, my attorney begins asking me specific questions to satisfy his curiosity. The single question that should be asked is, “Can you tell me what you learned from all this stuff that took you a week to read?” It is only natural to try to figure out a case as it moves along. But it is a mistake to limit the expert’s comments about it.

The most fascinating phenomenon is that of attorneys who say, “I want to keep it simple.” With undeserved disdain for juries, they often cite the KISS Principle: ”Keep it Simple, Stupid.” My response is usually, “Fine. This Christmas, I want a pony.” What is stupid is treating a complex case as if it were a simple one. Some cases, of course, are simple. But one never knows until he or she examines the evidence. While it is important to narrow down the issues as one proceeds, and condense trial testimony into sound bytes, doing this prematurely (much less arbitrarily) stymies analysis – although it can certainly reduce legal costs. At the report or deposition stage, it may also narrow trial presentation opportunities, and provide opposing counsel with a roadmap for limiting the scope of the expert’s testimony.

Sin #1: Fidgeting. When experts discuss attorneys with one another (which they commonly do for referral purposes), the second-most common question asked is, “Does he pay his bills?” The far more important question almost always asked at the outset is, “Can he hold still?” Many attorneys cannot. I have my own acronym for this disorder: FASD (Functional Attention Span Disorder).

FASD is more a sociological than a legal phenomenon. Particularly in the world of contingent fees, thrifty underwriters, regressive taxation and unlimited incomes, many attorneys place considerable emphasis on spending as little time and money on a case as possible. Particularly on the plaintiff’s side, many attorneys take every case that walks (or wheels) through the door, throw them against the wall, expend as little effort and resources as possible, and live off the settlements from the handful that stick. I can generally sniff these attorneys out in the first three minutes of telephone conversation. Yet many defendants’ attorneys either cannot, or choose not to as a matter of strategy: Since FASD plaintiffs’ counsel care little or nothing about their clients, the best way for many defendants to reduce the damage awards is to offer these attorneys a small settlement before they are forced to undertake any serious effort, much less engage an expert. Leaving most of the money on the table is hardly a concern for attorneys who can collect the scraps with no down payment.

Shrewd defense attorneys can usually spot these cruisers by their level of effort. But this is becoming increasingly more difficult as the involvement of paralegals is spiraling, and the volume of paperwork growing in proportion. Frankly, I prefer speaking with paralegals about many things: Earning a small fraction of what their bosses do, they can afford to hold still. And given their increasing amounts of substantive responsibility, they are usually more able to get their attorney’s attention than a mere expert.

Except where potential damages are enormous, FASD is also common to many defendants’ attorneys since they are paid only an hourly rate (and thus, are deprived of hysterical and surrealistic motivation), and since many carriers ration their efforts like jewels. I am constantly surprised by defendants’ counsel who never bother to interview their clients’ staff.

The Seven Deadliest Sins

As Washington lobbyists say, “In a democracy, you get what you deserve, and you deserve what you get.” This is also true for parties in a lawsuit who fail to notice when their attorneys commit the Seven Deadliest Sins.

Even where defendants have limited control over their counsel, they must observe their counsel’s conduct, effort and style carefully. Judging simply by the results is an illusion that eventually catches up to you – usually in a really big case. Particularly in civil lawsuits, do-overs are rare – largely because most attorneys dread appeals more than skin disease. All the marbles go into a single basket. Particularly as a single lawsuit is often one too many, this is not necessarily a bad thing. But only if one watches the basket.

Publications: National Bus Trader.