General Practice, Solo, and Small Firm Division
The Compleat Lawyer
Summer 1997 copyright American Bar Association. All rights reserved.
Strategies for Representing the Plaintiff
BY EDNA SELAN EPSTEIN
Edna Selan Epstein has been in practice in Chicago for nearly a quarter of a century. She handles a wide range of plaintiff's cases - employment discrimination, business frauds, pension class actions, and legal and medical malpractice. She is a member of the editorial board of Litigation magazine.
Litigation is to a case what the ferris wheel is to transportation. This unfortunate truism reflects the fact that defendants' lawyers make their money by the hour. The more they spin their wheels, the richer they become. The interests of their clients coincide. Why pay today when you can put it off until tomorrow?
Even in today's litigation climate characterized by the legal audit, when push comes to shove, defendants have few qualms about paying their lawyers rather than their opponents. "Thousands for defense; not a penny for tribute" is hardly a surprising slogan when no given individual has to dig into a personal pocket to pay the piper.
Thus, the defendants' litigation strategy is to take their sweet old time and keep the litigatory wheel spinning. The crocodile tears shed over the delays and costs of litigation are often just that - crocodile tears. For defendants, delay makes eminently good economic sense.
The primary concern of a corporate defendant in litigation is not to keep costs down, but to save face and cover exposed butts. Accordingly, the primary role of defense counsel is to provide cover. How can a plaintiff's lawyer best capitalize upon these defendant market realities without getting ground down by the time spent to closure?
First, plaintiff's lawyers must recognize the reality that time is not on your side. Time is on the defendant's side. Money today is of greater value than money after five years of ferris wheeling. Does that mean the plaintiff's lawyer should sell out the client's case as quickly and therefore as cheaply as possible? As quickly as possible - yes. As cheaply - hardly. How do you focus your practice in general and a case specifically to consistently achieve that end?
Evaluate the Case
A plaintiff's lawyer loses money on the bad case. Bad cases are hard to settle. Eventually, a jury or a trial judge says: Sorry, no liability. Or you may persuade the jury that the defendant did the dastardly deed, and the jury may give you the compensatory and punitive damages that you seek. But the trial court and/or the appellate court is likely to expunge the award.
You, as the lawyer, are then left holding the bag: unrecouped out-of-pocket costs, lost profitable opportunities, and an unhappy client who will not tell friends and relatives what a great job you did.
The moral of the story: You have to learn to say no. Yet a plaintiff's lawyer who is too choosy can't make money either. You need an ongoing "inventory" of cases in the pipeline. Not every potential plaintiff who walks through your front door is the one with the case that will let you retire.
There is another problem with being too choosy. You risk turning what was once upon a time the practice of a noble profession, worthy of the name "counselor," into a mercenary business. If you do that, you may have trouble looking at yourself in the mirror each morning as you brush your teeth. Besides, you will be missing out on the best fun in the practice of the law: taking a sow's ear of a case and turning it into a silk purse filled with gold, i.e., a good monetary recovery and a grateful client.
But make no mistake. That transubstantiation feat takes a substantial expenditure of the one commodity you can not afford to waste: your time. So how do you go about maximizing the potential from the cases you do take? To evaluate a case properly, you need to do three things accurately: (1) evaluate the plaintiff, (2) evaluate the liability, and (3) evaluate potential damages.
If you don't like a plaintiff as a person, don't take a case. That is the single hard and fast rule I follow. There is no way you can convince yourself that someone you don't like has been wronged and deserves dollars to assuage the hurt. If you don't like the plaintiff, no jury or judge is likely to either.
How trustworthy is the potential plaintiff? Does he keep appointments? Does he come on time? Does she pay the "downstroke" she has agreed to pay? Does she help you complete the requested discovery?
If the potential plaintiff fails any of these tests, bow out of the representation, even if you have already undertaken it - the sooner the better. If the plaintiff fails these tests, you should see a big red light blinking at you insistently. Ignore it to your monetary and professional peril.
Having decided you like the potential plaintiff and want to help her while seeing justice done, take the time to hear out the story in full. Get as many of the facts as you can. Get the potential plaintiff to tell you what the defense will be. She knows (or should).
Mull the facts over in your mind, creatively. But are you overlooking a cause of action? In other words, you need to evaluate what the available causes of action are and how likely is it that there will be a finding of liability.
The complaint should tell the plaintiff's story. It can be boilerplate, but it shouldn't be. The complaint can achieve more than that if it is well written. Draft the complaint with the plaintiff at your side, after you have digested the facts and the theories of liability.
You may have the best case in the world on liability grounds, but few if any damages. You may nonetheless take the case, but keep an eye on the blinking yellow light. Be certain that you evaluate all potential types of damages accurately. For instance, you may get a quick settlement in an employment case if the employer does not want the ex-employee back on the payroll and liability is strong.
Turn the Plaintiff into a Partner
A good plaintiff's case is first and foremost the plaintiff's case. You are only the midwife. Tell this to the plaintiff and then act on it. You will be surprised at the effective cooperation and imaginative assistance in preparing a case that a committed and intelligent plaintiff can give you. Don't brush off involvement by the plaintiff in case development as a bother. It is not and should not be a bother. If the plaintiff is not committed emotionally to a case and willing to spend the time to help you present the facts effectively and win the case, you will be squandering your limited commodity: time.
BY SANFORD HAUSLER
Sanford Hausler is of counsel to the New York office of the law firm of Aftab, Savitt & Sobol, P.C. He practices in the field of civil and appellate litigation. He is the Second Circuit editor of the ABA's Appellate Practice Journal.
You're on your own. You've sublet space from a firm, praying that they will give you some overflow work, and you sit and look at the phone, waiting for it to ring. Finally, it does. Someone wants you to represent him in a litigation. But should you take it? Your first impulse is to say, "Heck, yes." But you should resist this impulse, at least until you've had time to evaluate the case.
Careful evaluation of cases is crucial to the successful practice of law. If done correctly, the upside of your practice can far exceed any downside. Your first consideration has to be your bottom line. You have overhead to pay. Will this case bring in money? If the client wants to enter into a contingency agreement, the answer depends on the merits of the case. Is there a viable cause of action? Are the facts strong enough to warrant going through with the litigation? And most importantly, what are the damages that your potential client suffered? These questions are of crucial importance before you can even think of taking a case on a contingency basis.
As important is the question of whether any judgment you recover on behalf of your client is collectible. The fact that the potential defendant has insurance or assets adequate to satisfy any potential judgment is also a significant factor in deciding whether to undertake the representation.
If the merits are solid and the assets to satisfy any potential judgment are there, you must then consider how far away you are from your ultimate payday, the amount of work that you will have to put in to reach that payday, and the expenses that you will have to front in order to litigate the case. It may be that the merits of the case are such that you are willing to invest a significant amount in the case. However, you may not have the financial resources to advance the funds necessary to litigate the case to verdict. Or perhaps the possible return on litigating the case might not justify the needed expenditures.
Even if your client agrees to pay you on an hourly basis, an evaluation of the merits is still mandatory. Clients who seem perfectly willing to pay your fee at the commencement of the lawyer/client relationship may change their tune if the costs are higher than they anticipated, or if the result of the litigation is adverse to them and you did not advise them that such a result was a possibility. (They may grouse even if you did advise them of the weaknesses of the case, but that's beyond your control.)
It is generally a good idea to seek a retainer before performing any work. If the client is unwilling to provide you with the security of a retainer, it may be a sign that you will have trouble down the line collecting your payment. You should certainly insist on a retainer if you believe the merits of the case are weak. Clients who insist on litigating weak cases on "principle" are the most likely to stiff their lawyer when the likely adverse result occurs. In such cases, a reluctance to provide a retainer is almost tantamount to a fee dispute if your client does not prevail.
In addition to evaluating the merits of the case and the expense of the case both to you and your client, you should take into account your own expertise. If the case involves learning a complicated area of law - an area that you do not anticipate utilizing in the future - it may not be cost-effective for you to take the case. The client is unlikely to pay for your education, so you will have to write off the time spent in learning the law. If that time is likely to be extensive, taking the case might be more expensive to you then it will be to your client. However, if the case involves an area of law that is of interest to you and in which you would like to practice in the future, then it might be worthwhile to take the case and learn the law.
Sometimes you will want to take a case because you believe in it or because you find it interesting, regardless of whether you will ultimately see any money. If you can afford to do so, feel free. Pro bono work is an honorable practice, one that should be encouraged. Finding the Leverage
A profitable plaintiff's case needs some form of leverage to settle quickly and well. Remember, defendants have all the time in the world. Plaintiffs do not. What form can that leverage take? A claim or a cause of action that has substantial embarrassment potential. Thus, always ask your plaintiff whether there are skeletons in the defendant's closet and what they are.
But beware. You can not threaten criminal action to obtain a civil settlement without finding yourself before your local disciplinary commission. And even in today's climate where sanctions are no longer a cottage industry, the totally frivolous action exposes you to unattractive economic and professional consequences. When you turn to leverage, make sure you understand the boomerang potential. Anything that ups the ante may have negative risks.
What constitutes permissible leverage? It's the ingenuous cause of action that does not necessarily leap to mind at first blush. For instance, if the defendant has federal contracts, has the defendant violated some law or engaged in impermissible shady dealings? Consider whether there is grounds for a qui tam action. I had a case where a settlement had been reached, but the defendant hospital operating on Medicare/Medicaid funds inexplicably backed out of a standing settlement offer. A qui tam action miraculously resurrected the settlement offer and added enough to the offer to pay for the time incurred in bringing the leverage to bear. The defendant's counsel recommended me to other potential plaintiffs.
If the ingenuous cause of action is not available, adding a defendant may do the trick. In one employment discrimination case, I added a client of the employer, alleging that the client had in fact called all the employment hiring and firing shots. The case settled fast enough.
Avoiding the Ferris Wheel of Endless Discovery
Nothing becomes the ferris wheeling defendant in litigation so well as discovery - endless discovery. There are three major types of discovery: document requests, interrogatories, and depositions of both party and nonparty witnesses. The plaintiff's lawyer needs to approach each of these somewhat differently than defendant's counsel.
Documents are invaluable for plaintiffs. Documents (unless doctored) do not lie. If doctored, and you can prove it, they give you the nail you need for your opponent's coffin. Be tenacious in getting documents, and expect that defendants and their counsel will stonewall you. Learn the nature of the available documents. Your client should be able to provide you with invaluable assistance. The bigger the company, the more certain you can be that everything has been documented and saved somewhere.
Getting those documents is worth every effort you can put into the endeavor. Motions to compel may be necessary. Judges hate them, so make sure you can demonstrate that the documents exist or once did. Detail what you have been given and what has been withheld. Explain why you need the documents. Finally, don't ask for documents you don't need. You don't want to drown in paper. Nor do you want to give the defendant's lawyer the opportunity to whine that they have given you thousands of pages of documents, however useless, as a defense to giving you what you really need.
Interrogatories that ask the defendant to identify witnesses or are otherwise narrowly focused and targeted to the specific factual pattern are of some limited use to plaintiffs.
Depositions are not only the single most expensive aspect of plaintiff's discovery (often at $1,000 a pop for a lengthy deposition) but also are nearly always useless. All they are really good for is to give you a reading of how the defendant's key witnesses will play to a jury. Get the defendant's story from their witness quickly. There is no reason for your depositions to be lengthy affairs.
Defendants usually do not have many people to depose in a plaintiff's case. Plaintiffs do. Don't do it. All you will get is a costly dress rehearsal, benefitting only defendant. If the defendant does you the favor of submitting affidavits in support of a motion for summary judgment, all the better. The defendant has just spared you unnecessary costs.
As for third-party witnesses, often they will talk to you without the need for a costly deposition. Only if the third party is too closely allied to the defendant is that impossible. And by all means, don't depose your own potential witnesses, unless there is a danger that they will disappear. As a plaintiff's lawyer, you cannot afford to overlook information that may exist in the public domain about the defendant. Look at annual reports, SEC filings (downloadable from the Internet), and other former employees known to your client.
Sooner or later, someone has to take the plunge and talk about settlement. It is rare that defendant's counsel opens the door. A strong and competent plaintiff's lawyer does not show weakness in broaching settlement. The sooner the better. There are two ways of proceeding.
- A high demand, from which you back off and let the defendant's lawyer tout to his client the great deal he just got and the $$$ he has saved his client.
- A low but reasonable offer that you increase at each turn as your demands are turned down. It is not what defendants or their counsel expect you to do. It takes a great deal of fortitude to do that. But if the facts and liability are with you, stick to it. While this strategy is rarely used, when it is it can be masterful. Few plaintiffs, however, have the fortitude, the facts, and the resources to pull off this approach.
A speedy and "good" settlement is reached only if the "right" number is found. How do you do that? It takes practice and research. Look at jury verdict reports if they exist in your jurisdiction. Look at reported cases.
Ask more senior plaintiff's lawyers practicing in your jurisdiction. Put yourself in the defendant's shoes. What would you settle the case for if you were the defendant and defendant's counsel.
Once you learn to assess what is the "right" number for a given case, you will be amazed at how quickly, speedily, and pleasantly most cases settle. On one case, I was the third lawyer on an acrimonious family dispute. I made one telephone call to opposing counsel, a lawyer I knew well, who trusted me and knew my skills. "It was the right number," he told me of the $200,000 demand he accepted on behalf of his clients. "I told my clients not to even bother to pitch it at $5,000 less. You wouldn't take it, and the fight would cost them more than the amount they were trying to save."
You and Your Client
As a plaintiff's lawyer, to reach an economical settlement, you have to convince not only the other side but also your own client. People who have been genuinely wronged do not readily face reality. Many plaintiffs have told me that nothing short of $1 million would do. Eventually, after time has done its destructive work, they eagerly settled for far less.
Remember, time is generally not on the plaintiff's side. When a plaintiff is looking down the barrel of a bankruptcy, the $200,000 settlement that seemed paltry may suddenly become acceptable. When the long-term employee who was fired at age 57 for daring to inquire about a pension plan has a heart attack, the time may have come for you to cut and run. A trial would produce triple the award, but will your client live to see the day or tolerate the stress if he does? To make the outcome palatable and to leave the plaintiff feeling vindicated instead of had, first by the defendant and then by you, you have to develop a basis of genuine trust. How do you go about doing that?
Communication. More communication. Still more communication. Any plaintiff's lawyer who does not automatically send the client every document filed in court by any side and every letter written or received on the case is a fool.
The decision as to whether to settle and for how much has to be the client's. Informed consent must be given. That goal cannot be achieved without full disclosure and a relationship of trust predicated on understanding the issues - legal and real - that are at stake.
At times, you may well wish to involve a mediator. Mediators can make clients see reality where the lawyers have not been able to bridge the gap. To make mediation worthwhile, however, a relationship of trust with the other lawyer is a good idea. It is hard to be an advocate and not hate your adversary at times, particularly if they are pulling any cheap tricks.
Trust all counsel unless given reason to do otherwise. Keep the communications with reputable counsel amicable in tone. It is in your client's long-term interest. However, once you discover that opposing counsel is a snake, don't ever turn your back, but become even more correct and professional.
Focus Your Practice
Since time is generally not on the side of the plaintiff, and since the vast bulk of cases do settle, a plaintiff's lawyer who wishes to earn a living without fleecing or selling out clients needs to become focused and efficient without sacrificing quality.
Every once in a while, there will be the case where the liability is great, the damages are substantial, and the plaintiff has the emotional and economic staying power to go for broke. Go for it. Take the case to trial. That case is your home run. But don't make the mistake of thinking that these ingredients will be present in each and every case.
For the bulk of cases in your office, you can only focus your practice by obtaining the most realistic settlement for the largest amount of money in the shortest period of time possible. That is only achievable by quality work at each stage. Pick the case well, assess the client and the other side, develop trust with your client and with opposing counsel, do quality work. These steps will assure you of the credibility you need to settle cases without selling out your client.