A Class Act
One of the reasons I enjoy class actions and complex litigation is they force you to be disciplined. Take the simple task of organizing and interviewing percipient witnesses.
In individual cases, you have a list of witnesses, you interview or depose them as seems appropriate and it’s pretty much a simple process. In class actions, you need a system or things can get out of hand pretty quick.
One of my favorite parts of prosecuting a class action is getting a contact list for the potential (we call them “putative”) class members and conducting the initial interviews that tell me just what it is that I have on my plate.
Getting the list isn’t always a simple deal. In the wage and hour cases I’ve litigating during the past several years, I’ve seen both
extremes. Sometimes the defense will give up the list almost upon request. Usually this means they are feeling pretty good about their prospects. Sometimes, the defense fights tooth and nail, withholding the list until ordered by the court. Usually this means they are feeling insecure and then prepare for a bloody discovery battle.
We generally ask for a class list as soon as discovery opens and we ask in at least three different ways, which is further explained in this article on my website.
Money Falling Through the Cracks
My good friend, John Burge, was going through some medical records in a birth injury case I am litigating. I had asked him to take a look at the records to see if I could get an estimate on having them reviewed by an obstetrical nurse for organization and translation. (There are a bunch of people who do this work. John is with BMC Group. I also use Nancy Fraser at Med Legal Consulting. There is no shortage of vendors in this area.)
While he was looking at the records, John asked me if I had them in pdf format by any chance. Now, in case you’re not familiar, “pdf” is shorthand for Adobe’s portable document format, which allows you to read and manipulate documents on personal computers in all sorts of interesting ways. I knew exactly what John was talking about since, in complex litigation, we commonly ship information, pleadings and whatnot by electronic mail to save the cost of couriers and the U.S. Postal Service.
“I don’t,” I told John. He was rifling through one of the records and making conversation as he reviewed. “Well, it’s something you can ask for. Most of the copy services scan the original documents and convert them to pdf anyway,” he said. “If you order the pdf instead of the hard copy, it’s usually less expensive too.”
Now, whenever someone points out a way for me to save money on case costs without losing efficiency, I’m interested. It just so happened that we had some medical record subpoenas in the same case from the defense, and my assistant asked me if I wanted to order copies. “See if they have pdf,” I told her. She checked and lo and behold, here’s what we found.
As pdf’s, the copy service would charge us $.11 to $.12 per page. To have the medical records delivered in hard copy, they would charge $.40 per page. Yikes!
Now, I know that the cost of copying on my trusty Xerox machine is about 1-1/2 pennies per page if you exclude the monthly lease cost. So, by simply ordering medical records in pdf format and then printing them out as needed, I figure I am saving myself close to 75% of the cost of obtaining records.
This might not be a big deal in a small P.I. case or other simple matters, but in the kind of cases I work on which tend to be catastrophic, sometimes we wind up ordering many thousands of pages of records, all of which are reviewed and most of which, following the initial review, never see the light of day again.
With a pdf, that all changes. Not only am I saving myself the cost of copying, but I don’t need to pay for rental on the physical space to keep the file cabinet that stores the records during the course of the case. At the end of the action, I don’t have to pay the storage company to keep the hard copy for the three to five years my malpractice carrier prefers.
Even better, before I discovered this little money-saving way of handling records, the way we handled our medical records flow was typically: order em, get em, make working copies, organize working copies into books, then store the originals and working copies in a drawer somewhere. I have interviewed paralegals for potential employment and discovered that there are folks who believe that manually handling records qualifies as, not just an important job skill, but one that justifies a premium wage. For me, it’s just overhead that I’d prefer to reduce if I can.
I feel comfortable with a laptop computer and a large hard drive for managing my documents. I have a Mac Book Pro with a 17-inch screen that allows me to open multiple documents at a time and work with them side by side. I use Adobe Acrobat Professional which allows me to manipulate pdf files much in the same way that I manipulate paper.
Doing things electronically did take some getting used to, but the effort has been worth it, since it saves both time and expense. Plus, now I keep everything in one or two places versus three or four, so it’s much easier to find things even as the file grows.
In my birth injury case I am ordering all the medical records as pdf’s and my co-counsel is going to be pleasantly surprised when our multiple thousands of dollars in records copying costs drops by 75%. Me, I’m just happy to have a practice tip I can share with my friends, though I’ll take the cost savings just the same.
Admonition In’s and Out’s
We were taking a break during percipient depositions at the Long Beach City attorney’s office when I had the chance to ask the seasoned court reporter something I’d been pondering for quite some time.
“Do you know,” I asked her, “why we give admonitions at the beginning of depositions?” She furrowed her brow and thought for a second before answering.
“It’s to help keep the proceeding orderly, “ she said.
“Nothing more,” I pressed.
“Well,” she replied, “That’s what I think. There isn’t anything in the Code.” Her eyes rotated up and around, like they do when people are searching their memory. But the conversation was pretty much over.
The truth is, we all know about admonitions and we all use them more often than not to start a deposition. I learned mine from Gary Paul and Tony Stuart back in the old days at the Paul & Stuart law firm. I always assumed that Gary and Tony, in turn, learned their spiel from the lawyers at the old Greene, O’Reilly firm. My rap goes something like this.
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Now, just because I have a standard admonition, doesn’t mean I use it all the time. Over the years, I’ve learned that whether or not I use an admonition, and just how I use it, will depend on the situation.
I learned from an excessively cranky defense lawyer that if you prefer, you don’t need to use admonitions at all. “I’ve never used them and it’s never made any difference,” the old hack, er, hand, told me when I complained that he hadn’t instructed a witness. I was still a young lawyer, but that got me thinking. I looked around and, sure enough, I couldn’t find any legal requirement that the interrogating lawyer instruct the witness about how to testify. It was, how can I put it, a liberating revelation. It also put me on a path towards what I’d call creative witness admonishing.
Sometimes, I dispense with the admonition all together. Usually it’s either because I’m in a hurry to get the witness answering questions or I sense an aggressive approach will yield more fruit than a laid back, orderly manner. On the other hand, sometimes I just forget to instruct. I get focused, intense and forgetful sometimes. Just ask my wife if you don’t believe me.
I’ve had defense counsel complain to me about not admonishing from time to time. Usually, I don’t bother explaining my legal analysis re admonishments. Instead, I just sort of respond like this:
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The defense lawyer usually looks unhappy, which never bothers me and I can start questioning the witness without any undue delay.
Sometimes, dispensing with admonitions with a well-coached witness helps unbalance the carefully prepared testifier, which means there’s a heightened chance of obtaining testimony that more closely resembles the truth. Other times it’s just the opposite. I want to give a long, easy admonition, because it helps the witness settle down and become comfortable with the process before I start tackling the more interesting stuff.
At the end of the day, it’s the art in lawyering that is the most enjoyable part of being trial counsel. Giving yourself some flexibility in how you admonish witnesses can give you a psychological edge in that mental battlefield that is the deposition.
Oh, but don’t forget to keep things orderly so the court reporter won’t slap you upside the head.
Go get’em.
Using Daubert, Kumho Tire and Kelly To Your Advantage
I. In Product Cases, Experts Are Being Challenged Like Never Before.
Product liability cases not only live and die by expert testimony, they often require that the trial attorney introduce cutting edge scientific and engineering testimony to prove liability, damages or both. This is especially true in matters such as defective drug cases, where the evidence that a product is unsafe may lie in the hands of a limited group of specialized researchers.
Yet, where new or emerging scientific evidence is employed in courtrooms, judges are charged by statute and decisional law as the gatekeepers who will determine what expert testimony ultimately reaches the trier of fact. Obviously, being in a position to convince the gatekeeper to open the gate is critical in meeting the plaintiff’s burden at trial.
Most practitioners are familiar with Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993), in which the U.S. Supreme Court announced tightened standards for District Court judges performing their gatekeeper roles. Most are also aware that early last year, the high court added some flexibility to its Daubert test in Kumho Tire Co., Ltd. v. Patrick Carmichael, 526 U.S. 137, 119 S.Ct. 1167 (1999), while at the same time affirming that Daubert principles apply to engineering experts as well as scientists. Many also know that in February of this year, the Supreme Court held a federal appeals court may make its own determination that a key expert does not meet the Daubert/Kumho Tire reliability standard and then instruct the trial court to enter judgment against that party without any further proceedings. Weisgram v. Marley Co., ___ U.S. ___, 120 S.Ct. 1011 (2000).
Even so, evaluating applicable gatekeeping rules doesn’t end with acknowledging Daubert/Kumho Tire since, in California, the rules vary depending upon whether you are litigating in state or federal court.
In 1994, our Supreme Court in People v. Leahy, 8 Cal.4th 587, 604, 34 Cal.Rptr.2d 663 (1994) held that the time-honored Kelly/Frye rule 1/ survived Daubert as the standard for “evidence based upon application of a new scientific technique” in state court, then reaffirmed that holding twice in the past two years. People v. Soto, 21 Cal.4th 512, 518, 88 Cal.Rptr.2d 34 (1999); People v. Venegas, 18 Cal.4th 47, 76, 74 Cal.Rptr.2d 262 (1998) (“Venegas”).
Meanwhile, this past February, the Ninth Circuit limited the application of Daubert/Kumho Tire, declining to extend either U.S. Supreme Court gatekeeping case to certain types of expert testimony. U.S. v. Hankey, 203 F.3d 1160, 1167-1168 (9th Cir. 2000) (“The Daubert factors were not intended to be exhaustive nor to apply in every case.”)
The upshot of all this is that for the practitioner pursuing a product liability case, paying attention to precisely what gatekeeping rules apply in which forum becomes critically important. It also means that you can expect your expert technical evidence will be scrutinized at the trial court level like never before.
The rationale for tweaking expert evidence standards is that the system requires some check on reliability of expert testimony. “The objective of [the Daubert requirement] is to ensure the reliability and relevancy of expert testimony.” Kumho Tire, supra, 119 S.Ct. at 1176. “The Kelly test is intended to forestall the jury’s uncritical acceptance of scientific evidence or technology that is so foreign to everyday experience as to be unusually difficult for laypersons to evaluate.” Venegas, supra, 18 Cal.4th at 80, 74 Cal.Rptr.2d 262.
It follows that in any product liability action, a consumer lawyer must adopt a sword and shield approach.
Fashioning a shield simply requires anticipating expert challenges and preparing to ward off a Daubert attack from the inception of your case. Wielding a sword, on the other hand, contemplates actively attacking defense expert evidence using the same reliability standards that defense counsel employ.
In other words, a canny consumer attorney forearmed with the right evidence is in a position to not only protect their own experts from exclusion orders, but along the way to educate the court regarding the weaknesses in the defense’s expert case prior to trial. In a highly technical battle, an educated court can make a significant difference in reaching a final, just result.
Read more: II. Dealing With Daubert/Kumho Tire In Federal Court.
It’s Springtime And A Young Lawyer’s Thoughts Turn To Nine Men And Women In Black Robes
Spring is one of my favorite times of the year. Birds sing. The air feels fresher. Flowers bloom brightly in the garden and there’s that almost irresistible temptation to power down the laptop, drop the top on the convertible and go for a drive along the ocean beach or country road. 
I got a sort of springish tingle just the other day while reading the U.S. Supreme Court’s decision in Wyeth v. Levine 2009 WL 529172 (U.S.Vt.).
In case you’re not familiar, Wyeth was widely awaited by the product liability bar, which feared a conservative court would latch onto the Bush administration’s push to preempt state safety laws using language slipped into regulatory preambles (a process that gets you around the normal vetting process) and wipe out yet another area of consumer rights.
Instead, the high court came in six-three against preemption. Justice Stevens wrote a beauteous opinion explaining why state consumer protections remain an important part of modern American tort law. Justice Thomas, in a concurring opinion, came out strongly in defense of the states playing a key role in protecting their own. Oddly, he left his friend Justice Scalia alone with the Chief Justice in joining Justice Alito’s irritated dissent.
Too cool! Could the end of tort reform winter be closing in?
Predictably, The Wall Street Journal , immediately blasted the decision in a scathing editorial, calling the high court’s decision to allow the states to play a role in consumer product safety a “plaintiff lawyer’s dream. ” It loudly praised the dissent’s objection that submitting drug safety issues to the laws of the fifty states is an inherently inefficient way to run a national regulatory scheme. It parroted the dissent’s view that an expert FDA is better suited to making decisions on drug safety than a lay jury reasoning that a regulatory agency can weigh the big picture risks and benefits of a particular product more effectively than a lay jury, which sees only one injured victim in the single case.
Then, the very next day, a headline on the front page of that very same Wall Street Journal shouted, “Extra Extra! FDA process stinks of corruption!” Well, actually, the precise story began:
Political Lobbying Drove FDA Process
By Alicia Mundy
WASHINGTON
– The recent approval of a new device to treat knee injuries followed a lobbying campaign that overcame repeated rejections by scientists within the Food and Drug Administration, agency documents show.
The FDA’s internal dissent over Menaflex, which targets the most-common knee injury afflicting everyone from high-school athletes to baby boomers, is straining a government agency that oversees a quarter of the U.S. economy. Some senior FDA staff members complained in documents that the handling of Menaflex, made by ReGen Biologics, Inc., shows how political and industry pressure can influence scientific conclusions.
At issue isn’t just the efficacy of the device – that remains in dispute – but the nature of the FDA’s own approval process.
Like I said. A beautiful spring day.
Okay, so what’s really going on here, since even the once predictable Journal editors can’t seem to get their philosophical ducks in a row?
In my mind, it’s pretty simple. After a long period where America fooled itself into thinking that the wisdom of ages needed reworking and the laws of gravity had been repealed, we’re getting back to basics. I believe I see signs that common sense is slowly creeping back into the national zeitgeist. Don’t ever forget, civil juries are in the federal and state constitutions for a reason.
There are many possible motivators for what I would argue may is a transformation in national thinking about the best way to safeguard our persons.
The November elections signaled voters are ready for a change in our social status quo. It wasn’t that long ago (1963, actually) that an Irish builder in San Francisco was able to back out of selling my family a home when he learned my mother was born in Asia. Under the miscegenation laws in place at that time, it would have been illegal for me to marry my wife (good thing we were both too young). Now Obama lives in the White House and he is popular. A sign of spring?
The bursting credit bubble has clearly shaken America’s confidence in the notion that we can safely place our fate in the hands of an elite few. People are starting to question their belief that overprotecting profit institutions is the best way to safeguard their own well being. Flowers poking their heads through the ice?
If you want some more tangible evidence of a sea change in thinking even at our Supreme Court, compare last term’s decision upholding federal preemption for medical devices (Reigel v. Medtronic, Inc. (2008) 128 S.Ct. 999, 169 L.Ed.2d 892) with Wyeth, where preemption was overruled.
In Riegel, the majority accepted that a “cost-benefit analysis” performed by experts at the FDA was a superior means of effecting the greater good to a lay jury. One year and a market crash later, the Wyeth majority reached precisely the opposite conclusion. “The Court holds that a state tort jury rather than the [FDA] is ultimately responsible for regulating warning labels for prescription drugs,” complained the dissent.
Okay, maybe I have a touch of spring fever. But maybe our long tort reform winter is finally giving way to a change in the seasons.
Cross your fingers.
Continuing…Ten Tips for Making Partner in a Plaintiff’s Firm
continued from yesterdays post
5. Keep a good work ethic.
There is a difference between having a good work ethic and being a good worker bee. The former makes you partnership material. The later defines a valuable employee.
What’s the difference? I believe it has to do with whether or not you approach your practice with a passion.
Partners in a consumer firm must be passionate about their chosen profession to the point of near obsession. There’s a practical reason for this. We’re collectively a constant target of bad jokes, we have powerful enemies and our general public image is at something of a record low. Contingent fee law is a gusher business, with funds coming in irregularly and unpredictably, so, a good month can be very good and a bad year, very, very bad. It is a practice environment where only self-starters able to perform consistently despite breathtaking discouragement will qualify, let along survive.
There’s also the simple business management necessity of a strong work ethic. Plaintiffs, of course, carry the burden in a civil proceeding. I’ve seen many practitioners take on a file and then allow it to sit dormant until the very last possible minute. Malpractice risk aside, this won’t get optimum results for the client in nine out of ten cases. Yet, since usually the clients don’t know the difference between proactive and reactive representation, it’s possible to get away with quite a bit of laziness, assuming it does not rise up and bite you on the nethers.
On the other hand, owners recognize sloth and are not likely to offer ownership to a slug. Work hard, my friend, always giving your best.
6. Watch your caseload.
Work hard, but also work smart.
Besides being a closer, a prospective partner in a plaintiff’s practice must be an effective case manager.
Always keep in mind that as contingent fee lawyers, we are in the business of managing portfolio risk. By this I mean, there are a certain number of cases on your docket, only a portion of which will have any significant value. The remainder will either break even or be complete flops. In organizing your time and dedicating resources, you need to be able to separate the stars from the duds and deal with them accordingly.
In my experience, the 80-20 rule applies pretty well to a normal plaintiff’s practice, meaning roughly 20% of your cases will account for 80% of your revenues. What does that mean?
Well, for one thing, it means that if you have forty cases on your docket, on average you may expect that eight should come in strong, while the balance will either be non-productive losers or repay your time and investment, but just barely.
The clear upshot of all this is you don’t want to over-invest time and money in go nowhere cases or under invest in the ones voted most likely to succeed.
How do you tell the difference? Watch the caseload. If you don’t have good case picking skills, you probably shouldn’t be worrying about partnerships anyhow.
Case management software can make it easier to track your files. If your firm provides it, learn how to use it. But the old noodle is your first line of defense.
As Robert Heinlein once wrote, “Put all your eggs in one basket, and then watch that basket!”
7. Give back to your profession.
Being a partner in a plaintiff’s firm means being a business getter. There are all sorts of strategies for marketing, branding and generating referrals, but the one that is time tested and mentor approved is giving something back to the profession you love.
There are plenty of opportunities out there. Just seek out one or two that suit your special passions or talents.
Writing scholarly articles to share your knowledge can work well and has the added benefit of helping you establish yourself as an expert in your field. Organizations like CAALA provide speaking opportunities where you can help educate your peers on current developments in the law.
If you have an interest in politics, get active with CAOC and the legislative process. Politics and lawyering go hand in hand and we can always use dedicated souls willing to volunteer their time to help preserve our precious right to seek redress through the American civil justice system.
Now, it is true there are attorneys and firms that sit back and take a free ride on the system. Don’t be that kind of lawyer. Be someone who gives back to your profession. It’s an important quality in a future partner.
8. Be a part of your community.
I’ve never been particularly athletic. I can’t throw a baseball to save my life. But, when my son’s little league team needed a manager and no one else stepped forward, I volunteered for the job. The kids on the team all got to play. My son remembers that season very well. The folks in my neighborhood got to know me a little better and I made some friends.
Then there was the developer who wanted to put a high density senior residence in the middle of our single family home neighborhood. The neighbors started organizing to fight. I showed up to a meeting and they asked me to be a spokesperson because I was the only lawyer in the room. I wrote one letter and went to one meeting. Now, I’m the abogado who lives in the grey house under the oak tree with the horses. People smile and wave at me as they walk past the gate. It’s really a great feeling.
I went to law school to make a better life for my family. Now that I’ve spent some time in the profession, I’ve come to understand that what lawyers also need to think about is how to help build a better life for the communities they live in.
When I talk to my friends about young lawyers in their firms, we don’t usually share how competent they are or whether they are punctual or speak well. Usually, it’s about what a great person they are and how something they did touched the life of another in a good way. We assume that partner prospects are competent, skilled practitioners. Asking someone to join the family business requires looking at other qualities.
For me, when I see someone is actively contributing to their community, that’s a strong positive. If they give themselves generously to their neighbors, I assume they will give themselves generously to the firm. I like that in a lawyer.
9. Don’t just do it for the money.
If you ask me I’ll tell you my law practice is a business, not a hobby, and I expect to earn money for my labor. Don’t make the mistake of thinking what we do is all about money, though. There’s a balance here. In order to succeed, you need to find where your personal balance lies.
When I was just starting out as a lawyer, I remember attending a vehicle inspection in a motorcycle crash case. When the experts were done with their photographs and measurements they left the room where the bike was kept and I was about to do likewise. Then I felt a hand on my sleeve.
It was the mother of the young man who had been killed in the crash. She’d been standing quietly in the background until now. I don’t know that we’d spoken more than a few words the whole day. I was engrossed in the technical part of the exercise. For her the occasion was solemn.
“I want to show you something,” she said, pulling me to the motorcycle. She bent down and pointed to some rust-colored stains on the frame. “Do you see that?” she asked. “That’s my son’s blood. I thought it was important for you see.”
Over the years, I’ve thought about that mother a lot because she taught me something important that day.
You see, up until that inspection, I’d thought my law practice was about filing complaints, answering interrogatories, taking depositions and arguing in court. That mother, my client, taught me I was completely and totally wrong. A consumer practice, you see, isn’t about paper and argument. It’s about blood.
I’ve been mentored by great lawyers. I’ve sat through lectures by legal legends. I’ve listened to war stories, read case briefs, poured through hundreds of practices guides, treatises and legal memorandum.
Yet, when I think about the core of our practice, my first thoughts always go to that mother mourning her son on that cold desert day so many years ago. What we do truly isn’t about the money. It’s about something infinitely more valuable.
10. Be a mensch.
The dictionary defines mensch as meaning “a decent, upright, mature, and responsible person.”
Will being a mensch make you partner more quickly? I don’t know the answer to that.
I do know that the menschen who populate our profession are truly too numerous to name. I think there’s a reason for this and a lesson to be learned from their example.
At the end of the day, consumer lawyers are something unique in this world.
The human condition insures a steady abundance of trouble and strife. To address the fact of human frailty, society charges us to serve as advocates and counselors in a court of law. In an age where so many feel powerless and disenfranchised, we are empowered to help shape the laws of this great nation.
How we go about our charge defines not only ourselves and our profession, but because of the reach of our influence, the entire nation. This is weighty stuff. It’s one reason why the bar exam takes a full three days.
With great power comes great responsibility. It follows that all consumer lawyers are duty bound, if not honor bound, to live our lives according to the highest human principles and society’s most enduring moral values. I mean, it’s obvious, don’t you think?
So, you should be a mensch. It’s good for you. It’s good for the country.
Also, you might make partner. It couldn’t happen to a nicer person.
Ten Tips for Making Partner in a Plaintiff’s Firm (con’t)
continued from yesterdays post
2. Shoot straight.
People have expectations regarding consumer lawyers. Generally, they are low.
A lawyer named Impos Syble was shopping for a tombstone. After he had made his selection, the stonecutter asked him what inscription he would like on it.
“Here lies an honest man and a lawyer,” responded the consumer lawyer.
“Sorry, but I can’t do that,” replied the stonecutter. “In this state, it’s against the law to bury two people in the same grave. However, I could put `here lies an honest lawyer’.”
“But that won’t let people know who it is!” protested the consumer lawyer.
“Sure it will,” retorted the stonecutter. “People will read it and exclaim, “That’s impossible!”
I remember my father telling me while I was growing up that he would only do business with people who could be trusted to keep their word on a handshake. There are people who will argue that in this day and age that’s a quaint, outdated notion. I disagree.
It might be true we can’t avoid interacting with dishonorable individuals. Yet that doesn’t mean there isn’t value in being honorable ourselves. Or that cultivating character doesn’t have it’s own tangible rewards.
If becoming a partner in a law firm is much like getting married, then your known habit of dealing fairly and honestly with people outside the firm is likely to count in your favor when other lawyers are deciding whether they want you as a permanent member of their family.
Don’t fool yourself into thinking you can treat people outside your office badly or unfairly and word won’t come back that this is how you practice.
Trust is especially critical in a plaintiff practice, where the partners will often pursue their own cases with little outside supervision and their actions carry a direct financial consequence for everyone in the firm.
Be straight in your daily dealings and your path to partnership will straighten in turn.
3. Be a closer.
A plaintiff attorney needs to be a closer, pure and simple.
Simply put, being a closer is the ability to figure out the right solution to your client’s problem and get it done. The less wasted motion and inefficiency, the better. Being a closer means the cases are moving, time and resources are used judiciously and the business of the practice progresses at an optimum pace.
Back when I was starting out with my old firm, I got a call from a gentleman who was having a run of real bad luck. He was a former sales manager for an insurance company who was disabled from working and whose home had been badly damaged in the Northridge earthquake. He had disability insurance, but it wouldn’t pay. He had earthquake insurance, but the carrier, the company he used to work for, was lowballing him. He had been forced out of his business. He had an unresolved claim for a personal injury totally unrelated to all his other troubles. He had been through two or three lawyers already and was a plaintiff in at least two lawsuits with two more waiting to be filed.
I’m honestly not sure I would take on that man’s troubles today, but this was early in my career and I liked the fellow. So I dug in and started working to dig him out.
What I discovered was, even though this fellow had several prior attorneys, none of those had been focused on closing anything. Which, as it turned out, was all the client needed.
So, I settled the injury case with a couple of telephone calls, which took care of lawsuit number one. I filed a bad faith claim against the disability carrier and then sent the defendant our own doctor’s report along with form interrogatories, which resulted in a quick mediation and a $1 million policy limits settlement thirty days later. A prior attorney had filed the earthquake bad faith case too late, so that case went away quickly. My client decided not to pursue a legal malpractice claim since the lawyer was a personal friend.
That left only the breach of contract claim against the insurance company that used to employ my client. I worked that case up for trial. Though I left the firm before the trial date, my old boss went ahead and tried the case. The jury awarded $17.5 million. The client was happy with that result.
Pretty much every successful plaintiff lawyer remembers a similar case where the big challenge was not so much legal reasoning as it was untangling a tangled mess. Closers are up to this challenge, because they never lose sight of why the client sought out counsel in the first place. After all, we are supposed to fix our client’s problems so they can move on with their lives. Our purpose is not to prolong the agony.
Failing to understand this key principle is probably the single biggest obstacle to either qualifying as partnership material or, more importantly, succeeding in a plaintiff practice.
I have known many fine lawyers who could think clearly, write compellingly and argue eloquently, but couldn’t close a case to save their lives. Some can’t resist the urge to hit for the fences every time out, even when the facts aren’t there. Others become fascinated with the legal process but forget that the client’s best interest might be a shortcut through the legal thicket rather than the long, long, way around. Some simply forget about the client’s best interest all together.
In a consumer practice, if you aren’t comfortable being a closer, you are probably destined to live out your days as an employee. Contingent fee lawyers are rewarded for being efficient. Inefficiency is punished. Not being a closer makes you horribly inefficient and certainly won’t make you a partner.
4. Be realistic.
As I mentioned above, consumer firms are basically mom-and-pop small businesses that reflect the personalities of their owners. This being the case, it may be you are working with an owner or owners that love you personally and appreciate your work but are never going to share their business with you.
Sometimes, it’s because the owner doesn’t work and play well with others and knows it. Maybe there is a failed partnership relationship in the past and once bitten, twice shy. There are as many reasons why owners don’t take on partners as there are stars in the sky. Do not take it personally.
On the other hand, take a tip from the relationship gurus. If you believe you are stuck in a dead-end situation and it is making you crazy, it is probably time to think about moving on.
Only, be realistic about this, too. Not everyone is cut out to own their own business. A plaintiff’s practice is a risky undertaking. There are plenty of failed legal ventures past and there will be an abundance in the future. Consider whether you are willing to put your entire net worth on the line for a string of cases only a mother could love. The idea of a regular paycheck might seem more appealing.
As for myself, I went to law school in order to own a business. I made it clear to each of my employers that I intended to be an owner. In the end, I wound up becoming a partner in a firm that had a declared no new partner policy. So at least I have the personal comfort of knowing that, if it all goes south, at least it’s what I bargained for.
Make sure you ask yourself how much risk you are realistically willing to take. Answer yourself honestly.
check back tomorrow for the 5th basic principle and more.
Ten Tips for Making Partner in a Plaintiff’s Firm
The long and winding road.
There really aren’t any hard and fast rules for forming a consumer trial firm. It follows that there isn’t a straightforward partner track, if what you are planning is a career in protecting consumer rights.
Now my brother, the corporate defense lawyer, always knew exactly what he faced as he set about trying to make partner at his silk stocking firm. From day one he was told what to expect, counseled on his progress, educated in the hallowed tradition of the firm and shown the way through whatever hoops he was expected to jump through in order to make the grade.
I’ve always assumed the only rule that universally applies to my own economic mobility as a consumer lawyer is survival of the fittest. So far, I haven’t seen anything to convince me I am wrong. Of course, I’m only mid-career.
You see, unlike institutional silk stocking firms, consumer firms tend to be smaller, less formal and more practical in how they move employees up into the ranks of owners.
Even the largest plaintiff shop tends to have a mom-and-pop flavor, with the culture generally reflecting the tastes and personalities of the individual owners. The reason is, firms that make up the plaintiff’s bar are, by and large, true entrepreneurs of the legal profession. While large firms tend to cultivate stable client bases built around old school ties, we consumer lawyers tend to focus our efforts on fixing problems that pop up in people’s lives to whatever extent the law, economics and the civil justice system will allow.
This fact of life is both the strength and the challenge of a plaintiff trial practice. The strength comes from our having to be a little smarter and a bit more creative than other lawyers who have the luxury of practicing the same type law over and over. After all, your suite buddy down the hall might get to focus each day on probate or contracts or even insurance defense. You, on the other hand, will be prosecuting sexual harassment on Monday, a truck accident on Tuesday, insurance bad faith on Wednesday, consumer fraud on Thursday and civil rights from Friday through Sunday. Then, come Monday, something else will come along.
It follows that to make it as a consumer lawyer at any level, you need to be tough, flexible and resilient. You also need to be a sharp business person. Not so much because money is a reward, but rather, because cash in the bank is fuel in the tank. Running a plaintiff’s practice can be an expensive proposition. Can’t get far without fuel.
How does this all add up to making partner? Or, perhaps, choosing one?
Well, if you step back for a minute, you’ll see that even though consumer firm structures vary, there are common principles that apply.
Adam Smith wrote:
The uniform, constant and uninterrupted effort of every man to better his condition, the principle from which public and national, as well as private opulence is originally derived, is frequently powerful enough to maintain the natural progress of things toward improvement, in spite both of the extravagance of government, and of the greatest errors of administration.
The Wealth of Nations, Book II Chapter III. I think what Mr. Smith was trying to say was, as people strive to better themselves and their communities, they ultimately succeed despite the hurdles a hostile government and its functionaries raise in their path. This should be encouraging to you as a consumer attorney in an age of tort reform. It also gives us some insight into just what licks it takes to be an owner in a consumer firm.
In my view, the successful plaintiff firm is populated with highly motivated attorneys, all determined not to be naturally selected out of their industry. What they share in common is a passion for the work and an idealism that keeps their hearts fresh in the face of great adversity.
Sound like you? Then God bless, and let these ten basic principles guide you on your path to success.
1. Be a Believer.
It’s easy to zealously advocate for a client who pays your hourly billing regularly and at the highest rate the market will bear. Heck, if the money is coming in, it’s hard not to over-advocate.
Much more difficult is standing up for someone who might not be so sympathetic. Especially when they have a close call claim and you are financing the case on a contingent fee. Then, it’s a whole different game.
In my experience, the single most important difference between a great lawyer and a mediocre functionary is whether that attorney truly believes in the people and causes he or she represents. Truly, the ability to believe and act on that belief can make all the difference.
A few years back, I took on the case of a young woman who was developmentally challenged. Physically, she was in her early thirties. Mentally, though, she had the intellectual capacity of a third grade child. She was a sweet, kind child, struggling along in a cold, adult world.
Her mother kept this woman-child at home as long as she could. But the mother, who was poor and disabled, eventually had to hand her daughter over to the care of a facility specializing in serving the mentally challenged.
At first the woman-child did well. She was placed in a six-member group home where all of the residents were women. She was happy there.
But the home operator had a sixty bed facility they needed to fill for business reasons. So, off this woman-child went, to a new home.
The sixty bed facility was mixed gender with little supervision in the living quarters. One of the male residents, higher functioning at about an eighth grade level, zeroed in on this young lady who was new in town.
The mother was horrified when her daughter started telling her, in a child-like manner, about having a male visitor in her room. The mother complained frantically to the home operator. She had meetings, made telephone calls. The operator refused to take any action.
Eventually, a child was born. He was beautiful to look at, but suffered severe neurological maladies from a malformation of his brain. So, he was blind from birth, had a chronic seizure disorder and faced a number of other physical and mental challenges. The woman-child’s mother, now a grandmother, came to us for help. She knew her grandson needed special care. She didn’t have any money to help him.
We took the case in as a medical malpractice matter, but it quickly became apparent that wouldn’t pan out. The defense was arguing we had no case at all. They claimed, with good support in law, the woman-child was above the age of consent, had a right to sexual privacy and the group home had no right, let alone duty, to interfere. When I asked one of the other lawyers in my firm to sit in on some medical expert depositions, he came away saying that this wasn’t a case we should be spending our time or money on.
Only, I couldn’t let go so easily. I’m a parent myself and I kept asking, “What sort of people would leave an eight-year-old girl” — because mentally, that’s who this woman-child was — “in close contact with a sexually active teenager?” It didn’t seem right to me, no matter what the case law was saying. The grandmother believed what had happened to her daughter was wrong. I believed that, too.
So, we set aside the law as it applied in general and started documenting why the home operator was derelict in this one particular case.
Discovery uncovered documents confirming the grandmother’s complaints. That led to evidence that the home’s operator had moved the woman-child into the mixed gender facility to enhance their profits. This created an inference that they were deliberately providing inadequate supervision to enhance their bottom line.
We turned up a trail of regulatory citations where the facility had been criticized for not adequately administering medication to the residents, which supported the grandmother’s testimony that she had been promised if her daughter couldn’t be relocated, then the group home would have its doctor administer a contraceptive.
At the end, what had looked like a no liability case settled for $2 million, the total policy limits available. The grandmother was able to buy a home where the entire family could live in dignity. That’s where they all live today. All because we believed.
Now it is true there are impossible cases that cannot be won or maybe should not be won. I’m not talking about those.
Rather, to win the right to partner up with real plaintiff’s lawyers, you need to have a sense of the righteous, the possible and the real. With all that in mind, believing in your clients and your cases will put you a long ways ahead in reaching your ultimate goal.
Check back tomorrow for more.
In Search of Quality
“Quality will always win.” That’s what designer Yves Béhr told the Wall Street Journal, anyway. I personally believe he’s right. But, let’s be honest. Often it seems like schlock reigns supreme. Quality? That’s just a pleasant aspiration.
(“Schlock,” by the way, is Yiddish slang for “cheap, trashy” (adj.) or “something of cheap or inferior quality” (noun). Don’t ask why a nice Catholic boy thinks in terms of Yiddish slang. It’s complicated.)
Anyhow, thinking of quality (or, anti-schlock, if you will), my friend Nancy Fraser comes to mind.
Okay, you might have heard Nancy’s name in your travels. Founder of Med Legal Consulting Source, a service organization that does medical record reviews for litigation, life care plans and billing audits. Registered nurse with more than 10,000 surgeries under her belt. Non-Hodgkin’s lymphoma survivor (“I wear it as another badge of courage, survival, whatever”). Fundraiser for alma mater University of Wisconsin-Madison Nursing School (the school has been in the basement of the UW hospital for years. $15 million raised so far, half-way to goal. “The big goal is to bring nursing into the 20th Century.” Not enough PhD. nurses. “That’s a big reason for the nursing shortage.”).
Drill down, though, and you find that, like still water or pure metal, quality runs deep.
Like Nancy’s leading role in raising $180,000 for a surgery center in El Salvador, and then taking time to appear on scene and join a team operating on crippled children. Or trekking in Laos and Thailand on medical missions among hill tribes where the kids and adults had never ever seen a real doctor. Or easing through Nairobi with a missionary team during the middle of an attempted coup. (“The country was run by the military . . . curfews from dusk to dawn . . . dead bodies piled up in the town square . . . pretty wild.”)
It’s totally in character for Nancy that I’ve known her more than ten years and knew nothing about her missionary qualities. But that’s a whole other story.
What I am really trying to write about here is how Nancy Fraser wants to change the way you practice law.
“My vision plan is to transform the industry,” she says in tone so casual, you’d think she was saying “I’m going downtown to shop for shoes” or “I’ll have fries with that” rather than “I’m planning on changing the world in a meaningful fashion.
Only, Nancy has what we call “street cred.” So when she talks softly it’s wise to listen closely.
“With the changes taking place in the legal industry and the changes that have taken place in the last few years with downsizing, lawyers have to rethink how they practice their business. There are options out there to work smarter,” Nancy says evenly. It’s like listening to a well-honed stump speech. And, she’s making sense.
Nancy’s notion is that lawyers have to stop thinking they must perform each and every step in the legal process themselves. Technology and the internet have eliminated distance barriers that used to limit information flow. So, why not opt for a new paradigm – one where the lawyer is a conductor instead of a one-person band – and make room for specialists who can add value to cases by performing their specialties in a cost effective manner?
In Nancy’s world view, that means letting her team organize and analyze medical records in appropriate cases so that key issues are identified early on and key defenses are analyzed right off the bat. Her organization strives to perform a narrow set of services in a first class manner. Organize and translate complex medical records. Interpret medical billing so damage dollars don’t get left on the table. Prepare a life care plan so the full economic cost of catastrophic injury is fleshed out in concrete, credible terms.
To be fair, Med Legal is one of several firms that provide this kind of service. Where Nancy hopes to distinguish her group is in approaching her specialty area with an especial eye towards quality.
“We have a zero tolerance policy for errors,” she explains. That mindset drives all of Med Legal’s reporting and evaluation processes. Nancy recognizes that striving for quality, like trekking though the jungles, is as much a journey as process, so that’s how her team approaches it. That included revamping training for all Med Legal teams this year and adding access to internet-based “webisodes” to improve consistency of process. “Comprehensive training is the key,” Nancy says with confidence.
In my mind, the real key is getting lawyers to recognize that none of us can be satisfied with “business as usual,” anymore. That’s a tough proposition.
One of my friends, a sole practitioner for whom I have high respect, doesn’t even use email in his practice. He is quite happy with his telephone and fax machine and cruises along doing things pretty much the same way he has for the past few decades or so. I don’t think he’s the only one, either.
One of the interesting phenomena of the legal world is, despite wholesale changes in just about every industry, the world of the small practitioner – which is pretty much us, friends – hasn’t evolved all that substantially. We are largely a world of mom-and-pop shops, entrepreneurs on a micro level. Even the biggest and most sophisticated of us tend to operate on business models that Abe Lincoln and William Jennings Bryant would have eyed with comfortable familiarity.
So, I asked Nancy, how does she expect to teach old – um – practitioners, new tricks, especially in a profession where most of us would quite happily don powdered wigs and refer to judges as “M’Lord” if given half a chance?
Nancy replied, by email of course:“My response to the final question is – Look, you are all bright people. If an attorney actually hears the message, that outcomes are impacted with quality medical record reviews, there will come a point when they can no longer turn a blind eye. Quality reviews increase damages, improve outcomes, with review expenses being reimbursable case costs and right now the economy is helping to open minds to new ways of improving efficiencies. We are increasing our sales force to get the message out one attorney at a time / one quality review at a time. It’s a grassroots approach that is gaining momentum!”
Oh, and also, if you have any leads on medical missions in the Orient, let Nancy know. She says she’s looking for something to “sink her teeth into.”
That’s how quality operates.
Cooking with what you’ve got
“Be yourself!” the trial gurus admonish when we ask the best way to present our cases. It’s easily the best advice an advocate can get. It’s also more easily said than done.
Today, being myself means telling you about a book titled Jam Today.
Jam Today has some darned good recipes, but where it connects with this column is in how Tod takes the “be yourself” mantra and translates it into practical terms just about anyone (even lawyers) can comprehend. She explains:
The title (Jam Today) comes from Lewis Carroll’s Alice book, Through the Looking Glass. Maybe you remember Alice’s exchange with the Queen? Where the Queen says, “The rule is, jam tomorrow and jam yesterday – but never jam today.”
And Alice objects, “It must come sometimes to ‘jam today.’”
Well I, along with Alice, object. Why is it always jam yesterday and jam tomorrow, but never jam today?
So the Jam Today cookbook is not really a cookbook, not really a memoir – it’s an answer to the Queen.”
The Queen desperately needs an answer, too. I can’t tell you how many times I’ve listened to lawyers moan about how they’ll never be a Gary Dordick or a Jack Denove or Mark Robinson or Wylie Aitken or whomever in the courtroom. That’s Lewis Carroll’s Queen talking about jam yesterday or tomorrow. It’s lost opportunity and wishful dreaming.
Jam today, Davies argues, is a simpler, happier state of mind: “It’s about cooking with what you’ve got, for pleasure, and for happiness and that of the people around you.”
Jam today, then, is shorthand for practicing living in the present. Living in the present, I would argue, allows us to better connect with those around us. Connecting, of course, is fundamental to the art of advocacy.
Davies spends her book explaining how she connects with herself and her loved ones through cooking. It reminds me a little bit of how two great trial lawyers – Gretchen Nelson and Christine Spagnoli – make an annual tradition of auctioning off their time preparing and serving a gourmet dinner, with the proceeds benefiting the Consumer Attorneys Public Education Fund.
As Davies observes in her book, “Meal preparation is not just a domestic act, but a political act as well. It’s a declaration of the importance of social happiness to the general well being.” If you know Gretchen and Christine even a little bit, you’ll agree that fixing and serving that annual meal is a direct reflection of their own personal commitment to the general well being. Also, there is a pair who knows more than a little about practical politics.
After reading Jam Today, I’ve come to conclude that, just like preparing a meal, preparing a case is a political act. In effect, with each case we file, we are saying, “This is a wrong that needs righting and justice benefits us all, individually and as a community.”
Also, I think reading Tod’s musings about her own struggle to live in the present is helping me begin to understand just why “being yourself” is such a key ingredient in the courtroom.
Trial guru David Ball and trial lawyer Don Keenan write that projecting artifice in court telegraphs you are keeping things hidden and is one of the surest ways of unsettling jurors. As Ball and Keenan point out in their new book, Reptile: The 2009 Manual of the Plaintiff’s Revolution (2009 Ballon Press), jurors distrust anything they sense is hidden, because the controlling portion of their brains, know at the reptilian brain or Reptile, perceives “hidden” as “dangerous.” Likewise, the juror’s reptilian brain distrusts anyone who hides anything.
Of course, actually letting yourself be yourself means uncovering who you really are as a human being and then becoming comfortable with that. It’s a tough thing for many of us to achieve. Some of us never will. All of us must try.
