DEVELOP THE RIGHT ATTITUDE FOR A PLAINTIFF ATTORNEY
Working with other lawyers and teaching them often shows they have the wrong attitude to be a great plaintiff lawyer. What attitude should they have? I think the most basic attitudes involve these concepts to start with.
The first rule of a plaintiff’s practice is to screen the case initially to make certain you are willing to try the case without assuming it will somehow settle without trial so you can earn a fee. The second rule is to prepare every case from the time you accept it as if it were going to go to trial without settling. The third rule is that if you end up facing a trial of a case you thought would settle and one you never planned to try, you have the courage to do the best possible job reasonably possible. You spend the time to streamline the case for the greatest jury impact,in the shortest trial time without short changing the client.
As to the first rule of careful screening, we have a professional obligation to assist people. We also have an obligation not to file frivolous lawsuits or exercise our professional abilities in ways that are not merited. Yes, there are instances where pro bono services are appropriate. There are also circumstances in which there are compelling issues that justify our involvement even with questionable issues and there are cases which may have significant public interest plus cases with personal reasons for taking cases we might not ordinarily take. These cases may represent a general exception. But, what good plaintiff lawyers do not do is to accept cases they know they shouldn’t take, but the damages will result in a large fee if it settles. Nor do good plaintiff lawyers take in cases they don’t like, or involve clients they cannot relate to or are problem clients even if there is the potential for a large fee. They do not focus on the potential fee. They focus on the case and their professional evaluations.
The second rule is the one most frequently violated which is: You must assume every case will have to be tried and will not settle. That means any case that you accept, you do so with the full commitment it will have to be tried and will not settle. If you are not prepared to advance the costs to prepare the case correctly for trial you either shouldn’t accept it or associate a lawyer who can. That means not taking in cases you shouldn’t because you hope they will settle. That also means not accepting plaintiff cases we know we aren’t qualified to handle unless we associate someone who is qualified. But, that also means the selection of the associated lawyer must always be an objective one based upon who is best qualified and never on the basis of the amount of fee you receive. It is legal malpractice to accept a case we aren’t qualified to handle and then attempt to settle it without associating a qualified lawyer out of greed over the fee that would have to be shared.
There are no shortcuts; no “let’s wait to see if it settles before we do any work” and no attempts in desperation to settle cases on the eve of trial because we really didn’t plan on trying this case and always assumed it would settle. All cases must be prepared as if they will have to be tried. Not only do we have to an obligation to our clients to do the best possible work reasonably required of us once we’ve accepted the case, the best settlements are made when we negotiate from a position of power fully prepared to try the case. We are powerful when our case is fully prepared and are fully prepared to try it. We are powerless when we’re not prepared to try the case and we are driven to settle it at any cost.
The third rule is the ethical obligation to try the case we didn’t plan on trying in the past possible manner consistent within reasonable ethical obligations. You do that by spending real quality time establishing the key positive and negative case issues. You figure out the most powerful way to present the positive. See for example, Mark Mandell’s book published by Trial Guides about framing issues. He suggests identifying the key issues in the case he calls “I just can’t get over the fact that…” To determine these issues a focus study is the most accurate way to proceed. Internet focus studies should be considered where time is short. In addition the negative factors that make you reluctant to try the case are very issues you need to be totally truthful about in jury selection before anybody else brings it up. You need to frame these issues in the best possible manner and own them, not try to bury them. You need to streamline the case to put it on as efficiently but as effectively as possible. You need to adopt the right mental attitude, not a “hung dog” approach, but one of positive expectation for a good result.
The reason most young lawyers have difficulty properly framing and focusing their cases is because they see it in detail and as complicated instead of from a “big picture” standpoint. Albert Einstein once: ” if you can’t explain it simply, you don’t understand it well enough.” Often this is illustrated by how they view information. for example, when given a written description of a major issue, their response is to ignore the message and instead focus on “you misspelled serious.” They Have been trained in law school to focus on details. They see only one tree instead of the forest.
Jurors are asking themselves: ” What is this case all about ?” and “what are they suing for?” When you ask a young lawyer what his or he case is about, a typical response might be :
” I represent a 37 your old mother of two children, ages five and ten . Her husband works at Boeing where he is an engineer. She has shopped at Safeway on Jefferson street in Mount Vernon for five years. On Thursday, January 1 2015 at 11 AM she went to the Safeway store. She was shopping for dinner that night. She had walked down several aisles and had just turned the corner when she fell. The store manager was called. She was rushed to the hospital with a broken leg. It was near the strawberry stand where she fell and she had red liquid on her shoe soles. We have sued the store for negligence.”
What’s wrong with that response? It demonstrates a failure to identify the essence of the case from the details of the case. The right answer might be “This is a case for a woman who slipped on something left on the floor while grocery shopping. ” In short hand, this is a “slip and fall case.” Everything else are details. When you think about your case , think about it from a broad viewpoint. The case is not about the details. The case is about the big issues, the story the jury tells itself about what happened and the practical impact of the injuries. Defense lawyers specialize in mucking around in details. The more complicated and confused they make your case, the greater the chance you will lose it.
Yes, I know you are saying to yourself that you knew all of this, but perhaps you should examine your own practice to see if perhaps you need a refresher on the basics of a plaintiff’s practice. Good luck.