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August 15, 2005

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Comments

Eh Nonymous

Evan, nice little post.

I would expand your point: lazy thinking is, unfortunately, typical of smart people in every walk of life, in every profession.

Some people don't make overbroad generalizations, avoid tarring people they haven't met, and when they must make negative observations of a class of persons, do it with full awareness and disclosure of their limited experience.

Conservatives (and liberals) do not, as a rule, obey the above maxim of minimalism. Most conservatives (by which I mean, most loud obnoxious conservatives who come to my attention) simply identify a liberal practice they dislike, and then paint with a broad brush. Liberals no less.

Of course, one is more likely to agree with/ accept/ fail to be annoyed by something with which one agrees, and one is more likely to notice/ be aggravated by/ find fault with something with which one doesn't. That is, strong Republicans wink at or fail to be flapped by things that Bush does which don't strongly conflict with their own ideas, even if it turns out to be not quite true. On the other side of the aisle, liberals are likely to accept things that Krugman writes which are critical of the President, even when there are political points which are fudged a bit (unlike his numbers, which are almost always more accurate than those from the administration).

So: lazy thinking, typical of much political discourse (but not the best of it).

Lazy thinking: also typical of American public discourse in general (with notable exceptions). Also all other countries everywhere.

Sloganeering instead of critical analysis; stereotypes instead of individual facts and factual statistics. Law professors are a lazy bunch, I'll posit, outside their areas of expertise. Give them something that seems obviously true (all P.I. plaintiff's lawyers are greedy; all Republicans are conniving; all X are Y, etc.) and off they run, blithely unaware of how fatuous their arguments sound.

And are bloggers better? Well, at least if we permit open comments, our errors can be brought to our attention, publicly, and we must either fail to respond to the point (effectively conceding it) or we must somehow grapple with its identification of our failure.

Eric Goldman

Evan, thanks for the remarks. I tried to pick my words carefully but I still may not have successfully conveyed my thinking. Certainly I wasn't trying to malign all plaintiff's lawyers, but I have repeatedly run into one specific subgroup that I tried to describe. I apologize if my remarks were overgeneralized. Eric.

Evan

Eric: Thanks for the comment. Maybe we can develop these ideas about plaintiffs' lawyers further in some other posts.

Yeoman

It's funny how this works.

For some reason, I ended up being a member of the local "plaintiff's bar" organization. I liked some of their CLEs, so I'd go to them.

The same thing you are talking about here, applied there, but the other way around. I was constantly hearing from the speakers about how evil and greedy the defense bar was.

The other thing I was always hearing was how tough the rule were for plaintiffs, while the defense lawyers always believe that the rules aid the plaintiffs.

If both sides are convinced the other is nasty, and that the rules favor the opponents, it's probably relatively fair.

Matt

Clearly, Yeoman, you have not spent enough time with the Overlawyered boys. If you had, you'd know the judicial system is heavily tilted in favor of the poor and downtrodden.

Get your head on straight.

The Sardonic Lawyer

The Sardonic Lawyer was a plaintiff's attorney for roughly 5 1/2 years before packing it in and going back to legal publishing. My take on things is that you are more likely to find someone fighting for justice on the plaintiffs' side of the bar, but not by much. Many plaintiffs' attorneys are mirror-images of their counterparts on the defense side, but not in a good way. Here are a few general observations I have regarding plaintiffs' attorneys (and, as always, there are exceptions to every rule):

(1) Plaintiffs' attorneys are somewhat lazy - the plaintiffs' attorney normally works on a contingent-fee basis, which means he or she gets the exact same amount out of any recovery, whether he or she worked 10 hours or 100 hours. This means that often it is in the plaintiffs' attorney's best interest to neglect certain aspects of the case, especially if it's not "trialworthy", and especially in light of the fact that his or her clients will likely not be able to discern whether the attorney is doing a good or bad job of developing the case;

(2) Plaintiffs' attorneys take on too many cases - since there is no guarantee that a particular case will pay out, the plaintiffs' attorney will often take on more clients than he or she can can legitimately expect to handle, largely relying on (1), above, to keep his or her head above water;

(3) Plaintiffs' attorneys follow the money - meaning that they want to sue defendants with deep pockets, and will go a long way to find someone fitting that description, even if they only have a tangential connection to the case. This is an especially useful strategy in light of . . . .;

(4) Plaintiffs' attorneys rely on nuisance value to pay the bills - for a plaintiffs' attorney, the mere fact that a suit is filed means the case has a certain nuisance value, regardless of merit. This, in connection with the foregoing generalizations, means that many plaintiffs' attorneys make a substantial part of their living based on a legal form of extortion;

(5) Plaintiffs' attorneys often don't abide by rules against barratry - typically this is justified by assertions that barratry laws are ridiculous, outdated, and don't serve a salutary purpose (which may be true), but that's beside the point, every bit as much as an assertion by an insurance defense lawyer that "value billing" is appropriate because it reflects the amount of time you would have had to spend to develop an issue, etc. from scratch. The plaintiffs' attorney, if he or she wants to comply with the letter, if not spirit, of the law, will conduct "informative" or "townhall" meetings that are a thinly-veiled solicitation of employment in a particular case. Other plaintiffs' attorneys are more direct, using "runners" in places where likely plaintiffs are known to exist (plane crashes, warehouse fires, plant explosions, etc.) to actively solicit clients for their attorney employer.

There's a great deal more The Sardonic Lawyer could write here, but I think you get my drift. I'm certainly not saying all plaintiffs' attorneys are unethical (I prided myself on my ethics during my time as a plaintiffs' attorney), nor am I saying that all plaintiffs' attorneys have less than noble purposes at heart (fighting for justice for the little guy was what made me able to practice on plaintiffs' side of the bar as long as I did). What I am saying is there's plenty of pressure to compromise your ethical and moral standards as a plaintiffs' attorney, almost as much as there is for associates at BigFirm Sweatshop LLP (almost, but not quite).

All for now,

The SL

The Sardonic Lawyer

Oh, one more thing. Matt's comment that "the judicial system is heavily tilted in favor of the poor and downtrodden" is a clear indication he hasn't practice law in Texas (or if he has, it was strictly in the Beaumont/Port Arthur or Rio Grande Valley vicinity).

Evan

Sardonic Lawyer: Sometimes it's hard to know up from down at this weblog. I believe Matt actually meant the opposite of what he said.

Aaron

When I read this:

My reference point behind this was my experience at Epinions. When we ran into "pure" plaintiff's lawyers, some of these lawyers would seem to have no regard for the facts or the law. We were just an ATM to them, and the question was how large the withdrawal was going to be--regardless of the legal merits. I'd explain to plaintiff's lawyers that their claims were unambiguously preempted by 47 USC 230, but the pure plaintiff's lawyers wouldn't hear it...there's an injured party, so surely *someone* is going to pay, and it might as well be Epinions.
two things occurred to me:

1. Professor Goldman was encountering careless and incompetent lawyers. By the nature of his work, they happened to be plaintiff's lawyers, but any lawyer who was threatening what was presumably some form of online defamation claim without any awareness of 47 USC 230 is... suffers at best from a propensity for careless practice.

2. Professor Goldman fell victim to the "biased sample." (He later qualifies his prior statement, joking(?) "I can say with 100% confidence that I've met at least one ethical plaintiff's lawyer in my life.")

When I read statements like that, I think back to my encounter not so long ago with a very nice lawyer from an NLJ 250 firm (specializing in civil defense) who just happened to get stuck with a plaintiff-side case a partner had filed on behalf of... a couple of people who must have been very good clients, because why else would they pretend to be plaintiff's counsel? A couple of months later I had a judgment in my client's favor, and an award of sanctions (including actual attorney fees) against the client and firm. Being a plaintiff's lawyer, and identifying viable causes of action, apparently isn't as easy as some defense lawyers assume.

I do know some plaintiff's lawyers who, as Sardonic Lawyer suggests, are "somewhat lazy", but contrary to SL's suggestion their recoveries generally suffer for it. Defense lawyers aren't stupid - they know which plaintiff's lawyers are lazy, which don't work up their cases properly, which can't brief the defense of a summary disposition, which always settle in advance of trial.... They also know which ones will work up a case, advocate effectively, and are likely to get a large recovery at trial.

I'm not convinced that either side - the plaintiff's bar or the defense bar - is on the whole more hard-working, diligent, ethical, honest, responsible... than the other. I've met some impressive, admirable lawyers on both sides. And some I wouldn't trust with the time of day.

Eh Nonymous

Evan: I concur in your reading of Matt's comment. From context (citation to Overlawyered, which bleeds every time a corporate defendant gets haled into court and blithely fails to notice or highlight or make extensive fun of defendants who turn out _in fact_ have been guilty and/or liable) I gather that he was using what we in the field call "sarcasm."

Which is unfortunate, since he didn't use the international symbol for sarcasm, the [s] bracket. That helps compliant browsers display the intended sarcasm in a special font readable to users, so that the words (if the user is colorblind in the sarcasm frequencies) are reversed in meaning, or (if the user is highly sensitive to sarcasm) are gently toned down, so that only the most delicious whiff of sarcasm remains.

Also, Aaron:

When you say time of day, you meant at the time of the accident, right? Or, when the police officer showed up? Because I was looking at my watch when my client called me, which I believe must have been no more than 10 seconds or so after the cars came to rest. But of course, the real moment of interest is when _your client_ failed to observe the red light and proceeded into the intersection, striking my client's car, which was attempting to complete a legal left turn while in the intersection, on squarely on its right rear bumper and throwing it into a spin....

The Sardonic Lawyer

The Sardonic Lawyer agrees with you, Aaron, that many plaintiffs' counsel who don't work up their cases properly likely to be leaving money on the table. You are certainly correct that (at least some) defense lawyers aren't stupid, and can sort out which plaintiffs' lawyers are the lazy ones unwilling to do the work. However, the mentality amongst many plaintiffs' counsel is "all I have to do is beat summary judgment". In other words, get your client to state in deposition or other discovery enough "magic words" to create a fact issue, and you're going to get paid. The non-stupid defense attorneys are realistic in their appraisal of the case, and know that all complex or technical issues aside, if the plaintiff can put on at least a minimal showing that the defendant did something wrong, there is always an appreciable chance of an adverse judgment.

I would like to clarify my use of the term "somewhat lazy" - certainly this category includes plaintiffs' lawyers who do the absolute minimum they are forced to do to get a settlement, i.e., file the case and make a half-assed effort to answer defendant's written discovery, and maybe take a deposition. However, I'm also including in this category those plaintiffs' lawyers who won't go the extra mile for the individual client. When presented with the choice of doing a passable job of working up the case (minimal effort to obtain discovery, hiring an expert/whore who has zero credibility but will say whatever you want him or her to say, only having a basic command of the issues in the case, mediocre motion practice) or an excellent job (zealously pursuing relevant discovery, actually taking the time to find a credible expert and making sure the expert has all the needed information in a timely fashion, "owning" the case, and putting in the extra effort needed for compelling motion practice), this lawyer will typically decide that the extra effort isn't worth it because it's hard and there is no guarantee that it will pay off. Instead, this attorney would rather spend his time cranking out another poorly-developed, but likely to pay out, case up to the point of perceived diminishing returns, and if there is no minimal effort work that presents itself, well, it's time to play a round of golf . . . .

And just so we're clear on this point, I'm not saying there aren't equally lazy defense counsel out there. Defense attorneys who have a standard set of interrogatories they send out in every case, regardless of their applicability (for example, a set of personal injury interrogatories asking questions about who was driving the vehicle, weather conditions, etc. used even though the plaintiff has filed a premises liability suit in a slip-and-fall case. Don't laugh, The Sardonic Lawyer has witnessed this personally). Or defense attorneys who patently refuse to answer interrogatories, instead lodging the same kitchen-sink objection to each and every question. "Defendant objects to this interrogatory on grounds that it is abusive, harassing, not reasonably calculated to lead to the discovery of admissible evidence, multifarious, vague, ambiguous, asks for information covered by attorney-client privilege, asks for information covered by attorney work product privilege, asks for trade secret information, or is otherwise objectionable under the rules of evidence and civil procedure." And let's not forget our dear friend, the defense attorney who shows up at deposition and objects to the question as being leading and objects to the form of the question every time his client's name is mentioned.

Aaron

Oh, you remind me of a lawyer who is now... well, retired isn't quite the word for it, even if you are in your 70's when you are (finally) disbarred. He ran something of a mill, with a succession of associates who worked up the cases, ostensibly for a percentage of the fee or recovery - but would involve himself in the cases when the attorney fee promised to be large, so he could argue that the associate's percentage should be reduced by the substantial amount of work he, himself performed. (He also refused to pay associates for work they had performed on cases, if they quit before the cases were resolved.) He wasn't exactly strong on the rules of evidence, so in a particular case where he decided to represent the firm's client at a deposition he asked for a refresher from his associate, who said something to the effect of "objections are normally preserved for the record, except for objections to form or foundation." So the lawyer proceeded to exclaim, "Objection - form or foundation", every time the opposing counsel asked a question he didn't want his witness to answer.

What type of legal publishing work do you to, Sardonic Lawyer?

mythago

There's a great deal more The Sardonic Lawyer could write here, but I think you get my drift.

...that you only have dealt with sole practitioners?

However, the mentality amongst many plaintiffs' counsel is "all I have to do is beat summary judgment". In other words, get your client to state in deposition or other discovery enough "magic words" to create a fact issue, and you're going to get paid.

From the plaintiffs' point of view, the entire point of a deposition, for defense counsel, is to lay the groundwork for summary judgment. Ask objectionable questions if you must, but get something on paper that you can put in your motion for summary judgment--even if it loses, you bill the client for writing it.

The Sardonic Lawyer

Aaron - you've story reminds me of the attorney who demanded I suborn perjury. Despite the limitation on objections in deposition to "objection: form" or "objection: leading", he was notorious for ranting on about how terrible the question was, how stupid the lawyer was for asking it, etc. It was embarassing to be in the same room with him, because not only was he not abiding by the procedural rule, he also clearly didn't have even a fundamental grasp of when a question was or was not objectionable.

As for my work, I am a writer for a series of practice books specific to Texas. Currently I'm working on a family law handbook, next I'll be tackling the addition of a guide to products liability causes of action for an existing book on causes of action in Texas.

Mythago - actually, I've dealt with attorneys from pretty much every size of practice, from the sole practitioner up to the megafirms with offices in Texas, New York, California, London, Hong Kong, Brazil, Tongo, Madagascar, Iceland, Liechtenstein, Nauru, and Guinea-Bissau. There are naturally some differences based on size, but more of degree than of kind.

mythago

There are naturally some differences based on size, but more of degree than of kind.

It certainly sounds as though you are describing sole practitioners. Partners at a law firm are unlikely to be the ones taking a deposition, and associates are "getting paid" regardless of how the deposition turns out.

The Sardonic Lawyer

Mythago - I'm still not entirely sure I see where you're coming from. However, as a former associate with one of the larger plaintiffs' firms in Texas, I can vouch for a few things. First, you're right that the partner in a plaintiffs' firm is less likely to be the one presenting a client for deposition, though it does happen on occasion. The associates, in my experience, are not so laconic as you might think. Bear in mind the following: (1) every minute in a deposition is a minute your client has to undermine his answers to written discovery, meaning you will have to expend additional time and effort fixing the damage done, if possible; (2) every minute in a deposition that does not add value to the client's case is a wasted minute because your pay is contingent on settlement of cases, not how long you sat in a given client's deposition; (3) every minute you spend in a deposition that does not add value to the client's case is a wasted minute because it's a minute you could have otherwise spent working to settle cases; (4) while you may indeed be "getting paid" regardless of how a particular client's deposition turns out, there is enormous pressure from the partners to get depositions finished as quickly as possible because they (the partners) view any minute spent in deposition that does not add value to the client's case as a wasted minute for which they would rather not pay you, because you aren't lining their pockets with money during that particular minute; and (5) most defense counsel have enormous incentive to fuck around and stretch out the deposition as long as possible, because they want to milk as many easy billable hours out of deposition as possible - insurance carriers and defendants typically don't spend much if any time arguing over whether they should pay the entire amount of time billed for a deposition.

Albany Injury Lawyer Warren Redlich

Thanks for your positive comments about injury lawyers. I think there are all kinds of us. I have definitely seen those who go after anything. In my experience, the best of us say no to cases that aren't very good. This is not necessarily due to social conscience. It's just good business. Good cases will generate better revenue for the amount of time and effort you have to put in. Bad cases will eventually disappoint you most of the time. There are those who try to make their cases better than they are, but that can really blow up in your face.

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