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August 21, 2004

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David Giacalone

It's a good thing ethicalEsq and Prof. Yabut are in retirement, because this posting would have them hyperventilating and working overtime.

Let me get this straight:

(1) You and other p/i lawyers do your most important work (i.e., your example here: preparing to argue and then arguing "three important motions") when overtired and/or sleep-deprived.

(2) Your p/i clients first get charged a fee that is considerably more per hour than an hourly fee would be, and then get fewer hours of work out of you than if they had been charged per hour.

Interesting. Your readers and clients can draw their own conclusions (Ted, what do you think?).

I must have been a fool when in practice, because I actually worked as efficiently as possible all the time (and crammed when necessary to do a job correctly), precisely because I was charging my clients by the hour. I even refused work when I had too much work to do added work well.

P.S. From my experience, almost all lawyers are "crammers" by nature. Furthermore, p/i lawyers take extremely long depositions, while sending out enormous interrogatories (often filled with canned and irrelevant questions).

haikuEsq

On a lighter note, here's a haiku from "recovering lawyer" Barry George


long deposition--
the lawyer's
"at the risk of repeating myself"

See more from Barry here.

Evan

David: I think your two-paragraph summary of my four-paragraph post is a tad inaccurate. Where did I write about being sleep-deprived or overtired? And where did I write about charging a larger hourly fee or working less hours on a case as compared to other types of lawyers?

I'll state my main point another way: for plaintiffs' lawyers, there is an economic incentive to learn how to work quickly. (Although the economics are different for defense lawyers, I'm not saying defense lawyers necessarily waste time.) One consequence of having to work quickly is that you learn how not to fret over important motions by overpreparing in the weeks before they actually happen. Instead, you wait to prepare until just before the motion is scheduled to take place. If you're good enough to know you're just as likely to win either way, what's lost by waiting to prepare until you actually need to do it?

Finally, as a veteran of hundreds and hundreds of depositions, it's simply wrong to say "p/i lawyers take extremely long depositions," if you're comparing them to defense lawyers. I'll also add, however, that you can't judge how well a lawyer does in a deposition by how long it takes him or her to complete it. The thing I'm being critical about is unnecessary time-wasting. There are sometimes very good reasons for taking lengthy depositions.

Evan

David: Sorry, but two more thoughts:

(a) Last week, I posted some ideas for making depositions shorter at my other weblog.

(b) Whenever I write about "plaintiffs' lawyer," you respond by commenting about "p/i lawyers." Unless I note otherwise, however, the things I write about plaintiffs' lawyers are never addressed specifically to p/i lawyers, which is only one type of plaintiffs' lawyer. The way I'm using the term, "plaintiffs' lawyers" includes lawyers who represent people injured in accidents, but also plaintiffs' antitrust lawyers, class action lawyers, mass tort lawyers, aviation specialists, consumer lawyers, products liability lawyers, nursing home lawyers, patent lawyers who work on a contingency fee basis, commercial business lawyers working on a contingency fee basis, lawyers who specialize in pharmaceutical litigation, etc.

Most of the plaintiffs' lawyers I work with most frequently don't do any accident law at all. Would these lawyers be "p/i lawyers" as you're using the term?

haikuEsq

You seem to be going for the capillaries, Evan. As you use the term, "plaintiffs' lawyers" is overinclusive, just as my use of "p/i" may be underinclusive. From now on, consider my use of "p/i" as denoting "plaintiff injury." [Aside: In my book, product liability, mass tort, aviation suits, and most of the others you name, are based on personal injuries to clients, and are therefore "p/i" cases. I'll let psych experts tell us why the so-called trial lawyers keep running away from that term, and creating fancy subsets and euphemisms.]

If some one can work very late and get up very early and not be tired or sleep-deprived, my hat goes off to him or her.

I'll gladly say that you're an exception, and limit the above remarks, to the general class of "plaintiffs' lawyers." It seems clear to me that the general class of "p" lawyers, and virtually all who take contingency fees, are attempting to make higher fees than the local comparable hourly fee, based on the purported risk they are taking.

My remark about the length of depositions and interrogatories was, as stated, based on my experience, which is (happily) limited. How come the Editor of this site can generalize, hyperbolize, and poke fun, but the Commentors can't? We're all personally injured by your policy.

BTW, did you at least like the haiku?

UCL

In my personal experience, I've seen so many crummy oral arguments by both plaintiff and defense lawyers that I'm not convinced economics is in fact creating a distinction between the 2 sides, as far as preparation for oral argument goes. David notes, "almost all lawyers are crammers by nature", and I agree with him. I'm sorry to say this but I just don't see evidence of thorough preparation in oral arguments, at least at the trial court level, by lawyers very often. It happens occasionally, and it's a pleasure to observe when it does. But not often.

Evan

David: Yes, I liked the haiku. Also, please feel free to generalize, hyperbolize, and poke fun whenever you'd like. Or criticize. I'll tell you when I take exception, just as (usually), you do with me. I certainly don't want you to hold back.

UCL: I see some pretty good oral arguments, although I agree that some lawyers don't prepare as much as they should and that these lawyers can be on either side of the case. With that said, I certainly don't understand why someone wouldn't prepare for an argument on a motion hearing. That I don't understand. In my experience, trial court motions are won and lost on the arguments much more often than on the written briefs. (Federal court is a different issue--in the E.D. of Missouri, there usually isn't any oral argument at all--everything is done on briefs.) So knowing this, why not prepare?

Maybe the lawyers are preparing, but are just crummy at arguing motions.

skepticalEsq

Every study I've ever seen about lawyer preparedness and competence finds a very large portion (sometimes a majority) of lawyers ill-prepared when they go to court for just about any purpose. It seems that (1) diligence is not highly valued by lawyers; (2) lots of lawyers take on more work than they can handle diligently; and (3) many lawyers just don't care enough to do the work well -- lazy and/or only in it for the money, one might conclude. Too skeptical or too frank?

Most of us have seen far too few well-argued motions or appeals in our lifetimes. At the U.S. Supreme Court level, at least, I assume the lawyers try hard to be well-prepared. That suggests that oral argument skills are sorely lacking even among the diligent. [Geez, don't tell the clients, they might want refunds.]

By the way, don't take any b.s. from that Giacalone dude.

OLS

So when does well prepared become overprepared? One of the reasons that I don't like to do trial work (leave that for the barristers) is because I know I overprepare for motions and I'd hate to think how much I'd spend on a trial.

Sometimes the client's buck can only take so much work...

Would this not be the same for USA as it is for Australia?

- OLS

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