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July 27, 2004

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David Giacalone

There you go again, Evan! In order to sanitize or euphemize the terminology, you've made it far too overbroad, thus including/tarring many lawyers who do not engage in the politically-charged, professionally-marginalized activities.

Are we really limited to one or two syllables to describe the lawyers in question? We're talking about "plaintiffs' personal injury lawyers" or "plaintiffs' p/i lawyers" -- lawyers who seek to remedy personal injuries suffered by their clients through monetary damages, and who usually work for contingency fees.

I'd suggest dropping the possessive apostrophe because it is awkward and "plaintiff(s)" can be used as an adjective here. If we need an abbreviated form "PPI Lawyers" should do, and the many other meanings of PPI [e.g., Pickle Packers Interntional; Producers Price Index, Post Partum Interval, Personal Priesthood Interview] will allow you some wiggle-room when Sam comes home from kindergarten in tears, because his daddy was called a PPI Lawyer.

So, let's say "plaintiffs personal injury lawyers" or "plaintiffs p/i lawyers" and stop creating imprecise and misleading terminology.

Evan

David: Hmmm. I was merely trying to explain how I use the term "trial lawyer" on this weblog--it means any lawyer who goes to trial. The ones who normally represent the plaintiff are "plaintiffs' lawyers" and the one who normally represent defendants are "civil defense lawyers."

In being more precise, I'm trying to remove the political overtones from these terms, not add to them. I wonder what type of lawyers you think I'm "tarring" by this terminology--I assume you mean lawyers who primarily represent plaintiffs in trial, but not for personal injuries. Most lawyers who primarily represent plaintiffs handle injury claims. So who am I including who shouldn't be included. Examples, please.

Perhaps you mean that I'm tarring civil defense lawyers by calling them "trial lawyers"? To a lawyer like me who works in litigation, you can work on either side and still be a trial lawyer. That's how all my colleagues--at least in the Midwest--have used the term since I began working in a civil defense firm as a summer clerk, then as an associte, in 1989. The "trial lawyers" were the ones who worked in the "litigation department," and who were opposed to the "corporate lawyers" in the "corporate department." Among trial lawyers of either type, they use the terminology "plaintiffs' lawyers" or "defense lawyers" to refer to those groups.

As for my use of the apostrophe ("plaintiffs' lawyers"), that's what Garner recommends in his book on legal usage.

David Giacalone

Evan, Every lawyer who represents plaintiffs by filing court petitions/complaints fits the term "plaintiffs' lawyer," but far from every one of them is the kind of "trial lawyer" that is being targeted by certain politicians as demons. To confuse the terms brings every lawyer who represents plaintiffs into the target zone -- a strange result, if your objective is to improve the precision of the language. Why are you running away from the "p/i" part of the job description? Why create a new euphemism that will then get misused?

Also: Garner/Schmarner!! If an awkward usage can be avoided, avoid it. As a gifted writer, I'm sure you would usually agree.

Evan

David: Back at home, I've consulted Garner:

plaintiff's lawyer; plaintiffs' lawyer; plaintiff lawyer. For one who represents plaintiffs--in the U.S., usu. on contingent fees--the predominant form is plaintiff's lawyer. But plaintiffs' lawyer might be better for this purpose, since the singular possessive (plaintiff's lawyer) is often used in reference merely to one who represents a plaintiff in a particular action.

About "trial lawyer," Garner notes that the term is used "in its broader sense" to mean "defense counsel as well as plaintiffs' counsel." He also says that "in journalism and even in some legal writing, trial lawyer often denotes one who represents primarily plaintiffs, esp. in tort actions."

Maybe this gets at what's bothering me: why should journalists, seemingly overnight, be allowed to change the definition of a term that has had an accepted (and workable) definition among lawyers for years? Why shouldn't journalists do their homework and use the accepted definitions that lawyers already use? It's bothersome for the same reason that journalists say "opening argument" when they mean "opening statement." But I suppose there are hundreds of examples like that . . .

Beldar

The very first post I wrote when I began blogging was entitled "What do I mean when I describe myself as a 'trial lawyer'?" I defined the term in pretty much the same way Evan does, as "a lawyer who actually and regularly goes to trial."

I prided myself in being a "trial lawyer" even when I was at a huge firm and was almost exclusively on the defense side, and I still do (although it's getting damned near impossible for me to still get to trial, despite my eagerness to do so). And I know quite a few lawyers whose practice consists almost exclusively of bringing personal injury lawsuits on behalf of individuals who nevertheless don't qualify for the term, for the very simply reason that they always settle, and never go to trial.

I also wrote, and very strongly believe, that whether one's suing or being sued, all other things being equal, one's better off having a "trial lawyer" for one's lawyer:

Almost without exception, a client is better off having a trial lawyer — one who's been to trial often enough to not be scared of the process and to be good at it — even in that vast majority of cases that end up settling. This is especially true if the opponent is represented by a litigator, because more often than not litigators desperately want not to have to actually try a case. In addition to whatever legitimate reasons there may be to avoid trial, litigators end up being motivated — and the advice they give their clients ends up being compromised, and their performance as both counselors and advocates ends up being diluted — because of their secret, purely personal fears and insecurities.

"Plaintiffs' lawyer" is a term that impliedly is limited to civil (non-criminal) practice because there's not a "plaintiff's lawyer" in a criminal case, but rather, a prosecutor. "Defense lawyer" can refer to the lawyer representing either a defendant in a criminal case or a defendant in a civil case, which I suppose is what prompts Evan's suggestion of the term "civil defense lawyer" (which I find apt, if awkward). I'd generally include the "civil" modifier only if the context required it to avoid confusion; but usually the context (civil vs. criminal courts) will be clear.

As a political aside, there's no question that Democratic Vice Presidential nominee-presumptive John Edwards is, indeed, a "trial lawyer" — he made his pile not just off settlements, but off verdicts, and the settlements he won for his clients undoubtedly were larger precisely because his opponents recognized that he was very willing and entirely able to go to trial. Curiously enough, however, from what I've read of John Kerry's history — both as a prosecutor, and then in private practice representing mostly plaintiffs in civil cases — Kerry wasn't a "trial lawyer," but at best, a "litigator." Even as a prosecutor, he apparently managed to spend most of his time managing other lawyers. Speaking as a trial lawyer, I'd love to try a case — from either side of the civil docket — against John Kerry, but I'd much less relish John Edwards as an opponent (except for the relish that comes with a formidable challenge).

Finally, I'm with Evan and Garner on the apostrophe.

David Giacalone

Well, Beldar, we cannot fault you for a lack of self-esteem!! I'd like to believe that the outcome of cases still has more to do with justice (facts, law, and equities) than with the dexterity of the hired gun or the smoothness of the mouthpiece.

As I've pointed out many times before, it is the plaintiff(s') p/i bar that is most to blame for the pithy epithet "trial lawyer." If they hadn't started using that euphemism -- even changing the names of their associations to adopt the term -- when "p/i lawyer" got unpopular, we wouldn't have the current problem. Let's not blame journalists for adopting the term, which so easily fits into politicians' mouths and into headlines.

Fed No. 84

Evan, did you use DMLU to win your wager with your journalist friend? I thought it was obvious to everyone that lawyers open (or are supposed to, anyway) with statements, not arguments. I am glad to see people debating significant issues here, e.g., the placement of an apostrophe. ;^>

Although our Ethical esquire would "like to believe that the outcome of cases still has more to do with justice (facts, law, and equities) than with the dexterity of the hired gun or the smoothness of the mouthpiece," I'll be if charged with a crime he'd hire Roy Black if he could afford him. ;^> Rush Limbaugh believed in "the system" until he was caught in it. Now he belives in Miranda and the acumen of trial lawyers - which Black most assuredly is.

muscclehead

Might I also suggest Professor Those Who Can't Do, Teach Bainbridge? (sorry, I had to say it)

Abnu

Isn't "litigation lawyer" proper legal terminology that is inclusive of both "plaintiffs' lawyers" and "civil defense lawyers" and includes lawyers who resolve civil disputes before judgment at trial, as well as those who plead cases before judges and juries? It seems to me that the adjective "trial" is better to distinguish lawyers at trial level of litigation from appellate litigators. Perhaps the term "litigation lawyer" is too inclusive, and therefore not a handy epithet for some lawyers to disparage others. Is "litigation lawyer" a term that still has meaning in the practise of law, and in the media's characterization of lawyers? Come to think of it, I don't remember the term "litigation lawyer" ever before being used on Legal Underground.

Evan

Abnu: "Litigation" and "litigator" are words I normally don't use. Many lawyers use them, but I think "litigator" is another word like "attorney" that is used to make lawyers sound more important than they actually are. The words are also too close to jargon for me, and the word "litigator" is additionally imprecise because it carries a connotation of a trial lawyer who never gets to trial, but only pushes paper, engaging in endless discovery, etc. (Garner makes this point too, by the way, but I'll spare everyone the direct quotation.)

Beldar

Call me a "litigator" and I'll nod, but I'll grit my teeth.

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