When is the last time you have given real thought to the real purpose behind our advocacy for our plaintiff clients? I don’t remember what the case was about or what the outcome, but I remember how I felt after my first trial. I thought: “Wow. I’d pay someone to let me do this and to think they pay me!” I was so proud anyone would trust me with their problems and wanted to do my best job for them. My focus was on my clients and the discovery of how thrilling the trial process was for me was a surprise.
The problems of tracking time, billing and collecting from clients was a burden for me. When I first experienced the contingent fee arrangement I was struck by how fair it was to both client and lawyer. Then arrangement made sense to me as I had spent my summers during high school and college salmon fishing in Alaska and Puget Sound in Washington. The boat and crew would sail for Alaska in May and return mid summer to fish the Sound until Fall. The crew was paid a percentage of the profit from the salmon caught and sold to the cannery. The harder you worked and the more successful the boat, the more you made. If you didn’t do well you didn’t paid and could even owe money to pay for the expenses of the boat not paid for by the catch. The captain you selected to work for and the skill of knowing how to fish plus hard work determined the outcome. There’s an obvious similarity to the contingent fee arrangement.
Representing injured people was an obvious choice for me half a century ago when I began the practice because the big firms represented banks, corporations and insurance companies. Unless you wanted that practice, the obvious alternative was plaintiff’s work, regarded by the silk stocking firms as a tad above ambulance chasing. Plus big firms didn’t hire lawyers like me who went to night law school at Gonzaga in Spokane.
Criminal defense work was also open as the big firms did a small amount of white collar work, but not the ordinary defense for the common person. Those lawyers were seen in same light as the personal injury lawyer by the big firms.
Yet, all of these lawyers were and are part of the justice system and have important roles to play. The system functions right when the judge and jury are impartial and both fulfill their jobs with dedicated honesty. The insurance defense lawyer fulfills his or her role when they are ethical, honest and comply fully with the rules of procedure. Their first interest must be the insured client and not their fee, future work from the insurance company or their desire to win. Anything less than that is dishonorable. The criminal defense lawyer does his or her job when they present defenses which ethically challenge the government’s duty to prove guilt beyond a reasonable doubt. This country’s greatness is dependent on how we honor our constitution. Under our constitution the issue is not guilt or innocent of committing the crime. It is whether the state has met the constitutional requirement. The plaintiff lawyer does his or her job when they act in the same way as the duties of the insurance lawyer: honesty, ethics and dedication solely to the interests of their client, not their own.
When you are engaged with an unethical or obnoxious opponent there a some basic rules to consider:
- The most important rule is to have calmness in the face of whatever happens. When we are angry and out of control we don’t function right. Plus we give up our power to the other person by reacting to their cue. Gerry Spence once described it o me as “watchful waiting.” Like the matador calmly watching the charging bull.
- Respond only to those”attacks” that legally require a response. Otherwise just just respond verbally, if at all, with something like “That’s interesting” and walk away.
- Document everything. Phone calls, conversations & every other kind of communication or exchange should be documented. However, document with the idea a judge will read it. No anger. No profanity. All very professional and the less said the better.
Don’t be afraid to apply to the court for relief, but don’t seen as a cry baby bothering the judge with the inconsequential. Make it big and make it important.
Our purpose as advocates involves not only dedication to our clients best interests, but the continuation of our constitutional justice system. Let’s resolve to honor our obligations fully and ethically.