Trial Lawyer = Intellectual Lightweight?

At lunch yesterday, I happened to catch Rush Limbaugh's assessment of John Edwards. Rush's learned opinion? Not only is John Edwards a "pretty boy," but he's also an "intellectual lightweight."

"Remember," Rush added, "he's a trial lawyer."

For Rush, a trial lawyer is any lawyer who represents individuals in personal injury lawsuits. To call trial lawyers dull-witted is consistent with a common stereotype, one I find sort of puzzling.

When did plaintiffs' lawyers become the learning-disabled laggards of the legal profession? And why are lawyers who represent defendants at trial--who are also "trial lawyers," of course--generally considered very smart?

Any theories that would explain these peculiar viewpoints are welcome . . .

Comments

[Nic]

Rush Limbaugh stands out in a prominent family of lawyers. His father Rush H. Limbaugh, Jr., was a judge. His brother, David Scott Limbaugh, who graduated Cum Laude with a BA in Political Science and was Law Review at University of Missouri, is a practising lawyer who has served as a member of Missouri Association of Trial Attorneys. David has also had a career in politics, as distinguished from just talking about politics. So, when it comes to lawyers, Rusty Limbaugh here either knows what he's talking about, or he doesn't. We report; you decide.

[Rufus T. Firefly]

I have a few comments. First, I too dislike the label "trial lawyer." As you correctly point out, defense lawyers are also trial lawyers, as are commercial litigators, criminal lawyers (prosecution and defense), and matrimonial lawyers if they try cases. Further, how about lawyers who represent both plaintiffs and defendants? Are they only trial lawyers some of the time? It's needlessly pejorative. As for the intelligence of plaintiffs lawyers, I can only speak from my own experience, but there are some lawyers, both plaintiffs and defense lawyers, who are incredible on their feet in a courtroom, but who can't analyze, strategize, or write. I've known some plaintiffs lawyers like this who've nonetheless managed to win quite a few big cases, and I've also known plaintiffs lawyers who can do everything. The whole debate is silly; there are smart lawyers and dumb lawyers, good lawyers and bad lawyers, fat lawyers and skinny lawyers ... well, you get the point. After all, look who made the comment -- Rush Limbaugh, not exactly a man known for his objectivity about anyone whose politics are to the left of Mussolini.

[Jeremy]

Today an attorney at the law firm I am clerking at (a plaintiff's firm) came back from a deposition in a unhappy mood.

Apparently, the defense attorneys drug out the deposition as long as they could. Defense lawyers can be bad boys too. Some defense attorneys do everything in their power to make something as common as a deposition take forever since they are being paid by the hour.

Plaintiff's lawyers are sometimes viewed as being dishonest. A few bad apples spoils the barrel. Does a few bad apples not spoil the defense apple barrel?

[David Giacalone]

My two (inflated) cents:

(1) As we've discussed before, the plaintiff's personal injury bar created the whole "trial lawyer" misnomer-epithet mess by calling their bar groups "Trial Lawyer Associations." As usually happens, creating a euphemism backfires, and the term is tarnished by its connection to the disfavored group, concept or characteristic [e.g., "special," "challenged," and "reform"].

(2) Personal injury lawyers got the reputation as being on the low-brow end of the profession because they so often use silly, low-brow, brain-damaged advertising.

(3) Any objective, thinking person knows that the p/i bar contains both boobs and geniuses, along with the usual bulk of mediocraties. Evan, you should stop worrying about what the biased, uninformed, or mentally-challenged think or feel.

[Dylan]

It's the usual confusion between low morals and low intelligence. :-)

[Steve]

Jeremy, I feel your pain. One of the first things I did at the plaintiff's firm where I'm a summer associate was to attend a deposition. The defense lawyer took, and I'm not exaggerating here, three minutes between each question as he slowly read through each page of medical records. What should have taken an hour took two, and I almost fell asleep.

[Liadnan]

From the other side of the Atlantic it seems a rather meaningless term, certainly. But what I really wanted to let you know was that your post arrived in my newsreader immediately after one from The Fafblog wherein the inimitable Giblets pointed out several times that Edwards is a trial lawyer, including in particular:
"He is a trial lawyer! As a trial lawyer Edwards repeatedly stole money from poor corporations to give to greedy children crippled by their products! Do we really need a vice president who is a lackey of Big Children? Giblets thinks not!"

[Rufus T. Firefly]

Jeremy and Steve: There were few things that I resented more than plaintiffs lawyers and sometimes even judges who would accuse me of dragging things out, making motions, or failing to make what they deemed to be an adequate settlement offer because I was getting paid by the hour and/or wanted to keep the case going so I could get milk the file. That belief shows a complete ignorance of how insurance companies work. Budgets are required and work must be justified. Bills are frequently audited and time is written down. Moreover, insurance companies tend to award those defense lawyers who can get cases resolved in the most expeditious and cost effective manner. If a company sees that one of their panel counsel takes every case to trial that lawyer may soon find himself cut off. As the Bald Cretin used to say, "settle one and get two."

[David Giacalone]

I sure hope the term "children's lawyer" doesn't gain a negative connotation during this election.

The Lawyers for Children that I know are paid $40 to $60 per hour, not $40 to $100 million a year.

[Carolyn Elefant]

I often listen to Rush when I'm shuttling my girls here or there because he does make some insightful remarks about the political process - or at least offers a different or unique perspective. But a while back, he made some kind of comment that the only people who sit on juries are the ones too stupid to get out of jury duty. I found this comment exceptionally offensive to those citizens who do take the jury system and their obligation to serve seriously (as the recent Blakely decision shows, even Justice Scalia is willing to put criminal sentencing in the hands of juries as the Constitution requires) So irrespective of whether Rush has relatives in the legal profession and must know what he's talking about (per a commenter above), I don't give much credence, at all, to his remarks (positive or negative) concerning any of the players in the justice system.

[Nic]

Carolyn, you have clearly misunderstood my statement: "So, when it comes to lawyers, Rusty Limbaugh here either knows what he's talking about, or he doesn't. We report; you decide." How you can possibly infer from that sentence that I'm stating an opinion that "Rush has relatives in the legal profession and must know what he is talking about" is completely beyond my comprehension.

[Steve]

Sorry, Rufus. I don't know about dragging cases out through unnecessary motions, etc. I'm just going on what I've experienced. I guess the only other explanation for what I endured in that deposition was incompetence. Isn't it usually the practice of an insurance defense lawyer to know what's in the medical records before they get to the depo?

[Crime & Federalism]

A criminal defense lawyer is a trial lawyer: ALTA's membership is open to criminal defense and plaintiffs' lawyers only. Rush has a trial lawyer, Roy Black. I wonder why Rush doesn't fire Black (by definition an idiot) and handle the case pro se.

The Bush administration also hates trial lawyers. Too bad one led W's legal fight to SCOTUS. General Olson belongs to the American College of Trial Lawyers, whose "[m]embership is limited to those lawyers actively engaged in trial work as their principal activity." Oh, and let's not forget that W was quick to retain a trial lawyer (Jim Sharp) when the water got a little warm.

Oh, and what about DOJ's current RICO suit against big tobacco? This is grubby plaintiffs' work, isn't it?

The moral of the story is clear. Lawyers who represent the scum of the earth (you know, the little people) are trial lawyers. Lawyers who represent the wealthy and powerful are white shoe lawyers, pillars of the community, and all around smart guys.

[Jeremy]

Rufus,

This is strong language: "That belief shows a complete ignorance of how insurance companies work."

I didn't know that I was completely ignorant about this topic - but I suppose if I did know that I was completely ignorant then I would not be completely ignorant. :)

Secondly, notice use of the word "few."

Secondly,

[Jeremy]

In case anyone is wondering, I am not exactly sure what that second sentence means either. :) Let me know if you figure it out. :)

[C&F]

Well, I worked at a MAJOR plaintiffs' firm. Here are some things I saw def counsel do:
1. Comply with our discovery request by dumping 10,000 pages (they were bates-stamped) on our laps at the beginning of a deposition. You couldn't give them to us a day earlier, guys? Way to show your class. The docs were always irrelevant, btw.
2. Object to our deposition notices at the absolute last minute allowed by law. Every single time. So don't give me crap about some delay being inevitable. Also note that it is unethical to take some action that though allowable by law, is designed to delay litigation.
3. Make frivolous objections. We would say, "Just instruct your witness not to answer so that we can move to compel and move for costs." The objections would be withdrawn - every time. This cycle would go on throughout the day. Put up or shut up.
4. Propound duplicative interrogatories. I would literally copy and paste answers given to previous interrogatories. Way to be cost-conscious.
5. Use boilplate objections to our discovery requests - often without updating the objections to reflect the current litigation. We would rearrange the categories in our depo notices, but sure enough, the def's objections would correspond with the arrangement of the old notices. Very funny.

Def counsel would do all sorts of other bulls**t, but what counts of zealous advocacy might be subjective. However, the examples given above are pretty common and damn sure wrong. All in all, dealing with def counsel was very unpleasant.

[Tony]

Actually, Rush's brother
David is a lawyer and senior partner at his firm. Hes also a columnist.

Also, Ted Olson recently resigned as Solicitor General. Rumor has it that his reasons for leaving was that he was "unhappy that he was not informed about controversial memos authored by the Office of Legal Counsel on the use of harsh interrogation methods on detainees overseas."

I've worked on both sides of the personal injury/insurance defense thing. It was well understood at the defense firm that a case wasn't "ripe for settlement" till we had sufficient hours in it. Thats been my experience from the PI side as well.

[Evan]

Thanks for all the comments. Upon returning from New York yesterday, where I couldn't get my computer hooked up at the hotel, I was glad to see that there are some strong feelings on these issues. It also seems clear that what many who work or study in the legal field want is a place to vent. It gives me some ideas for future posts . . . In the meantime, vent away!

As for Rush Limbaugh's ties to lawyer, this is very true--in Rush's home state of Missouri, where I'm licensed in addition to Illinois, the Limbaugh family is well-known. Here's a run-down from one website:

Rush H. Limbaugh III comes from a family of conservative, high powered attorneys. Grandfather, Rush H. Limbaugh, Sr. served as President Eisenhower's Ambassador to India. An accomplished attorney, he continued practicing law after celebrating his milestone century birthday. Rush Sr. died in 1996 at 104 years old.

Rush's uncle, Stephen N. Limbaugh, Sr. is a federal judge appointed by Ronald Reagan and his first cousin, Stephen N. Limbaugh, Jr. sits on the Missouri Supreme Court.

His brother David practices law in Cape Girardeau. He is with the law firm founded by his grandfather, Limbaugh, Russell, Payne & Howard Law Firm. David also serves as Rush's legal representative.

[whomever]

From Rush's Brother's website:

Personal Injury
We represent injured parties and their families in serious injury and wrongful death cases involving automobile accidents, defective products, industrial accidents and other instances where the injury or death occurs through the fault or negligence of someone else.

Also, from David's martindale bio: Missouri Association of Trial Attorneys.

Interesting. Also, a majority of the firm's lawyers belong to ATLA.

[Rufus T. Firefly]

Well, look guys (C&F, Jeremy, and Steve), there are lawyers on both sides who play games. Everything that C&F describes above that he/she has seen defense lawyers do, I have seen plaintiffs lawyers do, many times over, and more so. One of the most annoying traits I have witnessed in plaintiffs lawyers, particularly solos, is to adjourn everything at the last minute because they have a conflict, which I can understand, but it nonetheless delays things ridiculously. (Contray to popular belief, insurance companies actually want a quick resolution.) Even worse, however, are those lawyers who insist they never got notice of a deposition (and sometimes even court conferences), even though I'd have a UPS tracking receipt, a telecopy receipt, or, sometimes, had confirmed the deposition with his staff. Do defense lawyers play these kind of games? sure, some do. But my experience, and I can only speak from my experience, is that on the whole defense lawyers are more professional, less sharp tactic oriented, more courteous, and overall easier to work with than plaintiffs lawyers as a whole. That said, there are plenty of defense lawyers I despise as people and as lawyers, and plenty of plaintiffs lawyers I respect as professionals and truly like as individuals. And let's not even talk about how many many state court judges bend over backwards for plaintiffs lawyers, excusing all sorts of behavior, particularly if they're local courthouse guys. Defense lawyers talk about getting "hometowned" all the time. I've raely heard plaintiffs lawyers use the expression. Ahh, let's face it, we all suck, we really do, but whether good or bad, lawyers, on both sides of the fight, do somehow stumble upon justice nonetheless.

[David Giacalone]

I'm getting nostalgic for the days when Notes from the (Legal) Underground was mostly about whether lawyers are entertaining, and this cyber cafe served lighter fare. [Please excuse that early day when I brought fee disharmony in the door.]

Maybe you need another site for venting spleen, Evan. How about "Notes from the Legal Battleground -- a blawg that asks the question: just how petty, defensive and offensive can lawyers be?"

[Evan]

David: Lawyers can be very petty, defensive and offensive--and that's one of the reasons we're so entertaining! Get it?

[David Giacalone]

Evan, call me squeemish (or even elitist and old-fashioned) but Mark Twain, Will Rogers and Jay Leno are entertaining, The Jerry Springer Show is not.

More style, wile and guile, please -- not more bile.

[Rufus T. Firefly]

I'm sorry. I'm truly sorry. I don't know what got into me. I think it was knowing that these guys are going to go out and make tons of money doing plaintiffs work while I'm just an Average Joe defense guy. My life really hasn't turned out the way I planned. Oh, there was promise once. There was promise to be sure Now, I can barely contemplate the bleakness that is my future. I'm ruled by resentment. On the bright side, I think I'm getting a puppy.

[Evan]

Rufus: I recommend a puppy for all defense lawyers. You will find that it will love you unconditionally and never complain that you're hanging around with it only in order to pad the bill.