Lessons Learned from the Other Side

WDC Journal Edition: Winter 2015
By: Kathryn A. Harrell, Boardman & Clark LLP

Introduction

Misconceptions about plaintiffs’ attorneys run rampant. They are often thought of as “money- hungry ambulance chasers.” Equally unflattering are the misconceptions plaintiffs’ attorneys have about defense attorneys, who are portrayed as unsympathetic, cheap, and focused on nothing but their billable hours. While there may be exceptions, these portrayals are largely untrue. If we can put aside our misconceptions and advance our understanding of representing plaintiffs, chances are we can better serve our clients on the defense side.

Below I discuss some of the practical implications of representing plaintiffs and tips I can offer to the defense bar, based upon my experience of representing plaintiffs. I started my career practicing insurance defense and medical malpractice law. I then took a leap of faith and worked for three years as a plaintiffs’ attorney. I am now back practicing insurance defense law. Each time I switched sides, my co-workers said to me, “So, you’re going to the dark side now?” It is interesting that each side believes this of the other side and, while these comments were made jokingly, they are indicative of the deep-rooted misconceptions each side has of the other.

I am grateful for my experience working as a plaintiffs’ attorney because it re-shaped the way I perceive the practice. I have to admit, putting aside my quickly-developed biases against plaintiffs was not an easy task. When I started as a plaintiffs’ attorney, I was skeptical of certain types of injuries and often under-valued cases compared to my co-workers. That changed, however, as I developed relationships with my own clients. I became immersed in their struggles, sometimes to a fault. I believed that all of my cases had merit. I often viewed their value higher than the insurance company or defense attorney, which led to frustration. I started to feel that the system was stacked against plaintiffs. At the end of the day, I rarely believed my clients got what they deserved. These feelings were emotionally taxing.

I also learned that the day-to-day practice of representing plaintiffs was quite different from my experience working on the defense side. I spent an average workday talking to and meeting with clients and prospective clients. I rarely wrote briefs or conducted legal research. I recall thinking at one point that it had been almost a year since I had written a complex legal brief, a task that was often delegated to newer associates. Most of my writing consisted of demand letters and mediation submissions. On the plaintiffs’ side, I felt I lost a slight edge when it came to legal research and complex legal analysis. The demands of my job simply did not permit me time to focus on these skills as much as I would have preferred.

When I switched to the plaintiffs’ side, my insurance defense buddies remarked how lucky I was to not have to bill for my time. However, many plaintiffs’ attorneys also keep track of their time. Generally, they are not billing their clients for that time, but time-tracking may impact their income and bonus incentives. That being said, the emphasis on billable hours is not nearly as intense as it is on the defense side.

There are other implications of representing plaintiffs that make the job quite stressful. Plaintiffs’ attorneys always have to worry about case expense recovery. It is upsetting to spend a large amount of the firm’s money on case expenses and then lose a jury trial. It is a difficult pill to swallow in addition to not getting paid for your work. Such an outcome not only affects the client, but the entire firm. A few of these big losses in any given year can put all attorneys in the firm under immense pressure. Moreover, the unsteady and unpredictable flow of income that results from contingency fee work adds additional stress to an already stressful profession. Defense attorneys often assume that plaintiffs’ attorneys are paid significantly more. While there are certainly exceptions, this assumption is generally a misconception.

By trying to understand the job of a plaintiffs’ attorney and the different perspective he or she may bring to a case, defense attorneys may be able to utilize better strategies to effectively resolve cases for their clients. Below are some suggestions I can offer, based upon my experiences.

1. Being Rude or Overly Aggressive During a Plaintiff’s Deposition Rarely Pays Off.

I do not recall a single occasion where I felt that an overly-aggressive defense attorney’s conduct during a deposition helped that attorney or his or her client. To the contrary, this type of behavior makes settling cases much more difficult. When a defense attorney is rude or aggressive to a plaintiff during a deposition, the plaintiff feels like a victim and gets angry. Plaintiffs’ attorneys do not like angry clients because they are less rational. What once was a rational client who was willing to settle the case for a reasonable amount is now an angry client who hates the defense attorney and wants to get back at him or her. This attitude does not help anyone.

Conversely, I have observed overly-friendly behavior by a defense attorney work to that attorney’s advantage. With a collegial defense attorney, a plaintiff begins to perceive that the attorney is on his or her side, so the plaintiff starts to open-up more and discloses far more than what was asked in the question, which drives the plaintiff’s attorney nuts.

2. During Depositions, Get the Plaintiff to Tell Real-Life Stories.

Plaintiffs’ attorneys have the advantage of learning how an injury really affects a plaintiff and his or her family. This is something often left out or underdeveloped in defense depositions. If you are in the uncomfortable position of believing a case has more value than the insurance adjustor believes it does, getting a plaintiff to elaborate about how an injury affects his or her life and then reporting these real life stories to the insurance company may provide the extra nudge needed to get the adjustor to offer more money.

On a similar note, pay attention to lay witness disclosures. Oftentimes, plaintiffs’ attorneys quickly identify lay witnesses who they do not really intend to call at trial. As a result, they do not spend a lot of time educating them or learning what they are going to say. As such, there may be opportunities for defense counsel to depose or interview these witnesses and score some points.

3. Diligently Review a Plaintiff’s Medical Records, Even in a Minor Case.

While it is not true of all plaintiffs’ firms, many do not have the resources to devote to conducting a thorough analysis of a plaintiff’s medical records. While medical record reviews are done in almost every case by defense attorneys, the same is not true for plaintiffs’ attorneys, who may only have them done in larger-value cases. Plaintiffs’ attorneys who handle minor to moderately valued personal injury cases are probably handling a high volume of those types of cases. This makes it difficult for the attorney to delve deeply into his or her client’s past medical history. This gives defense attorneys a big advantage. It is worth investing time and resources into reviewing a plaintiff’s past medical records, especially in those cases where you believe that the plaintiff’s attorney is not doing the same.

If a plaintiff’s attorney has not studied his or her client’s past medical records, chances are the attorney has not prepared his or her client to answer questions about past medical treatment issues that are likely to arise in a deposition. You can score some big points here by catching a plaintiff in a difficult position and discrediting that individual. Moreover, even if an attorney has not prepared his or her client to answer these types of questions, the attorney probably asked the client at the initial intake meeting whether the client had any notable past medical conditions. If the client told the attorney “no,” then by bringing up past medical records that indicate otherwise, you create tension between the plaintiff’s attorney and the client, which often results in quick and favorable settlements.

4. Plaintiffs’ Attorneys are Frustrated with the Demand Letter Process.

There is a growing sentiment among plaintiffs’ attorneys that the demand letter is becoming useless. Many of these attorneys are skipping this traditional step and are proceeding straight to suit. They are doing this because they perceive that the insurance company is unreasonable at the demand stage and that the only way they will get a realistic settlement figure is by dealing directly with a defense attorney. If this occurs, you may have some leverage to get the plaintiff to settle at a reasonable number early in a case. If you get a new file and note that there was no demand, you should ask the plaintiff’s attorney why no demand was made and request that he or she make an early demand in the case. You may be surprised by how reasonable the plaintiff and her attorney are willing to be before considerable expense is incurred.

5. Ask the Plaintiff’s Attorney to Pick a Mediator First.

When it comes time to pick a mediator, there is often a tendency to quickly throw out names without thinking about the implications of who is selected and why that person is selected. Try asking plaintiffs’ attorneys to give you suggestions first. When I was on the plaintiffs’ side, my co-workers and I often discussed which mediators we felt were more favorable to plaintiffs and we would always choose those individuals if given the opportunity. Once you know the plaintiff’s attorney’s suggestion, you are perhaps in a better position to find an alternative.

6. Consider the Exchange of Mediation Submissions if You are Worried about a Plaintiff’s Expectations.

One thing that causes defense attorneys a lot of frustration is going to a mediation only to learn that the plaintiff’s attorney has not prepared his or her client for the mediation process. If you are concerned about this, when appropriate, consider the exchange of otherwise confidential mediation submissions. When I was on the plaintiffs’ side, I found this to be a useful tool when I had a client who was being unreasonable as to the value of his or her case or to the problems in the case. If you are going to do this, it is best for the exchange to occur at least a week before the mediation so that the plaintiff has time to think and consult with the attorney. When I have done this, only special damage amounts have been listed by the parties. If you are not comfortable exchanging submissions, consider sending an educational letter to the plaintiff’s attorney in advance of mediation that outlines the risks of the case and the anticipated expense of going to trial. This letter is not for the attorney’s benefit, but rather for the plaintiff’s benefit, so be sure to explain things in a manner that will be easy for the plaintiff to understand.

7. Work with the Plaintiff’s Attorney on Subrogation Issues Before Mediation.

If you have a case with subrogation claims, you should consider working with the plaintiff’s attorney to put pressure on the subrogation attorney in advance of the mediation. A simple call to the subrogation attorney a week before mediation with a description of how strong your case is can help facilitate a successful mediation.

Conclusion

As defense counsel, we all probably possess certain beliefs about plaintiffs and members of the plaintiffs’ bar. Some of these beliefs may be true, others not so much. By trying to set our misconceptions aside and instead giving consideration to how our cases may be perceived by plaintiffs and their attorneys, we may be able to identify opportunities to resolve our cases more efficiently and cost-effectively for our clients.

Kathryn A. Harrell has nine years of experience as a trial lawyer. Her trial and appellate practice focuses on the representation of insurance companies, individuals, and businesses in tort litigation and insurance coverage disputes. These claims range from motor vehicle accidents to excessive force claims to allegations of nursing home negligence. Kate also practices in the area of municipal law and serves as the Prosecutor for the Village of Waunakee. Kate understands the stress that lawsuits cause and offers her clients an honest and practical approach to efficiently resolve their cases.