LAWYEROLOGY! - Part 9

What Drives Us To Do What We Do As Trial Lawyers

Posted May 25, 2012 by Rob Sullivan

I have often wondered why I chose a line of work where on any given day, even if I perform at the top of my game, there is still a significant probability that I will not get paid for my work, or worse yet lose money. In fact, some statistics show that my probability of failure in any given case as a lawyer representing plaintiffs, is greater than fifty percent. Not very good odds. I would actually have greater odds of success betting on a coin toss. This is the reality of being a trial lawyer. The interesting question is why would one choose this path as a lawyer? There are certainly easier ways to make a living than being a “trial lawyer” and a law degree can open a lot of doors to many different means of employment.

The term “trial lawyer” is used in many different contexts; however, as I use the term a trial lawyer is a lawyer who represents clients who have been injured by the negligent conduct of others on a contingent basis. In other words, a plaintiff’s lawyer or personal injury lawyer. Although I dislike the term personal injury lawyer and prefer not to refer to myself as one, this is generally the most understandable definition for people outside the legal profession. Representing clients on a contingent basis means that the client does not pay the attorney anything while the case is pending. A trial lawyer only collects an attorney’s fee and recoups expenses if a recovery is obtained for the client. In most cases, if there is no recovery for the client, the attorney does not get a fee and does not get expenses reimbursed. To put this in context, I am currently handling several cases that have expenses in six figures per individual case. No recovery in any one of these cases would mean losing several hundred thousand dollars. Very few professions have the stomach for this type of compensation arrangement. If you have any doubt about this, just try asking the businesses you deal with to accept this type of payment. You will find very few takers.

If you have a naturally risk averse personality, this business is not for you. If you do not have a very thick skin, this business is not for you. If you find it difficult to work under constant stress, this business is not for you. If you are not able to operate at a high level with minimal sleep, this business is not for you. If you enjoy the stability of regular work hours and weekends off, this business is not for you. If you want to leave your work at the office, this business is not for you. If you want to spend a lot of quality time with your family, this business is not for you. So why do we do it? What drives us to do what we do as trial lawyers?

Do we do it for the money? It is true that trial lawyers can make a lot of money. Many would even say way too much money. Even the lowest contingent fee in a product liability case is 1/3 of the recovery and most are at a much higher percentage. It is not hard to figure out how much a trial lawyer can make in attorney fees on a multi-million dollar recovery. While the reward for success is great in such a case, so great that it may explain the willingness to take such an enormous risk, it still cannot be the true reason why. Even the most successful trial lawyers, collecting seven figure fees, started out doing smaller cases and at times struggled to get by while their peers worked at “full service” firms and got a regular paycheck, spent time with their family and surely got a whole lot more sleep. If money was the motivator, most trial lawyers would give up some time during one of the inevitable dark times when every last dollar of credit was squeezed out of every last source of funding to keep the firm going until someone in the firm could settle a case or prevail at trial. This is something nearly every trial lawyer I know has experienced at some point in their career.

if not the money, could it be the characteristics of our personalities that draw us to this profession? I have been described over the years as rebellious, non-conformist, a risk taker, introspective, stubborn, arrogant, relentless and argumentative. I have always had a strong sense of what I think is “right” and a willingness to fight for it no matter what the odds. The longer the odds and more difficult the task, the greater the satisfaction I seem to enjoy if successful. Could it be because I am overachiever who has always been drawn towards goals that at times seem impossible to achieve? Even though I teach my children that it’s not whether you win or lose, but how you play the game, I don’t really believe it and certainly don’t live by it in my professional life. For a trial lawyer winning is everything and I would be lying if I said that I didn’t always want to win in anything I do, regardless of how gracious I may be in defeat. True, all of these characteristics, the good and the bad are helpful traits for a trial lawyer, but they can also be helpful traits for many endeavors in life. Although some of these personality traits may help explain how I have been able to succeed as a trial lawyer, they do not really explain why I choose to be one. A large part of what I have to do as a lawyer is in opposition to these traits. A certain amount of conformity, risk aversion, modesty, acquiescence and self doubt is often required to succeed as a trial lawyer in our system.

After some serious thought and soul searching, I have come to several conclusions. I speak for myself in this regard and do not presume to know all the reasons other lawyers have for doing what they do, but I suspect that my reasons are shared by many in my profession.

So why am I a trial lawyer? I am a trial lawyer because I feel deep compassion for people. Particularly people facing challenges and adversity through no fault of their own. I am a trial lawyer because I believe in justice and, despite its imperfections, I believe that our system can deliver justice for most people. A system where the most destitute individual with the help of a trial lawyer can stand up to America’s largest and most powerful corporations with the assurance that no matter how powerful the company, no matter how much money spent, no matter how many lawyers hired, no matter how may lies told, no matter how many obstacles erected, that one day they can stand equally before the law and hold even the most powerful and influential among us accountable for their actions. I am a trial lawyer because, without us, who will stand for the powerless against the powerful in the face of what sometimes feel like insurmountable odds.

If not us, then who? If not now, then when? I am a trial lawyer because I believe that being a lawyer and standing up for the principles of justice upon which our country was founded, often at great personal risk, is something bigger than myself and truly deserves to be regarded among the most noble professions. I am a trial lawyer because there is no greater satisfaction than helping those who cannot help themselves have a better life, a better future, hope and even happiness in the face of unimaginable physical and emotional challenges. That is why I choose to be a trial lawyer.

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Pool Safety Child Drowning Dangers and How to Prevent Them [infographic]

Posted May 25, 2012 by Rob Sullivan

Going into the Summer months is a good time to remind ourselves of our safety responsibilities as pool owners. Children drowning in pools is always preventable. It just shouldn’t happen. Check out this infographic for a refresher.

0 Comments - Filed Under: Daily, Legal, LinkedIn, LinkedIn Discussions

Do You Know The Real Facts About FAD (Facebook Addiction Disorder)?

Posted May 22, 2012 by Rob Sullivan

Do you find yourself checking Facebook on your phone during meetings, on the bus, on dates, at the movies and in bed, you may have a problem. Check out this infographic to see if FA (Facebook Anonymous) or TA (Twitter Anonymous) is in your future. And stop chuckling, I said TA not T&A.

Via: Rehab International

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A Chest-Puffing, Egomanical Waste of Time And Money…Lawyers Call This Mediation

Posted May 21, 2012 by Rob Sullivan

Have you been settling complex or high dollar litigation cases at mediation? In the current economic and legal climate, I seriously question the advisability of attending mediation in any case with damages in seven figures. Whether it be a products case, a railroad accident or a trucking accident, the result seems to always be the same — a colossal waste of time and money. In fact, I cannot remember the last time I actually had a case settle at mediation. This is not to say that I have not had any recent settlements. The vast majority of civil cases still setttle before trial, but in my experience more and more of these settlements are occurring outside of a mediation setting.

A familiar pattern seems to be appearing time and time again. First, we spend a significant amount of time and often money preparing for the mediation. In most cases, we prepare comprehensive presentations – the dog and pony show as many of us refer to it. This often entails hours of preparation. On the one hand, preparing the dog and pony show can be a useful exercise in identifying strengths and weaknesses in the case and can act as a type of trial preparation. On the other hand, a substantial amount of time is expended in this exercise that does not directly benefit trial preparation. In other words, time is invested in strictly preparing for a mediation that simply would not have been spent, but for the mediation. When the case does not settle at the mediation, or as a direct result of the mediation, that time and effort is wasted.

This unnecessary waste of time and money has finally led me to the conclusion that we should not even engage in formal mediation at all in a complex or high dollar litigation case unless forced to attend by the Court. Why? Because I already know what will happen the next time we mediate. I will have to sit across the table from insurance adjusters, corporate representatives and defense lawyers while they puff their chests, glare at me disdainfully and tell me why I will lose the case. They will brag about how successful they have been in exactly this kind of case. They will tell me that I will not be able to get a large verdict in whatever venue the case resides. No matter what the damages, they will tell me that their client simply will not ever pay seven figures. If it is a really good day, they will feign sympathy for my client which will inevitably come off as condescending and uncaring. Finally, they will likely make a ridiculous attempt to drive a wedge between attorney and client so that my client will doubt my advice later in the day when money starts to be offered.

After this egomaniacal display of chest thumping, we will split up into separate rooms and let the mediator attempt to earn his fee going back and forth with demands and offers. We will make a reasonable demand. Despite the fact that the defense will have our demand for weeks before the formal mediaion, it will take the defense at least two hours to make their first offer. The first offer will be utterly useless, will be more than likely insulting and will be accompanied by the familiar phrase that our demand is way out of the ballpark and there is no way the defense can even negotiate until we make a big move. Of course the mediator will assure us that our big move will be met with a big move by the defendant. If we are stupid enough to actually beleive this, we will lower our demand significantly only to be dissappointed in what the defendant has sent back as its “big” move. This ridiculous game will continue for several hours until the defendant eventually says they have reached the limit of their authority and we all go home because the limit of their authority is never even close to an amount that will settle the case.

Defendants, defense counsel, adjusters, corporate executives — HERE IS SOME VALUABLE INSIDE INFORMATION — we already know this is what you will most likely do and are prepared for it. It does not make us lower our expectations.

In reality, we have known all of this for years. Clearly there is a CLE (continuing legal education) seminar or class somewhere that teaches this nonsense because it is repeated over and over again. As a result, we attend mediations with no expectation of settling the case and our clients attend mediation with no expectation of settling the case. The only people that actually benefit from this process are the defense attorneys and the mediator, all being paid by the hour whether the case settles or not.

There really is only one way to change this cycle and divest defendants, insurance adjusters and their attorneys of the mistaken belief that these tactics benefit their clients — refuse to play the game.

This is the course I have chosen and I encourage attorneys handling these types of cases to give it a try. Of course there will always be exceptions to this mediation boycott, but the default position I am choosing to take going forward is not to mediate without a court order and to dedicate all of my time to preparing the case for trial. If a reasonable offer is made by a defendant, I will then consider mediation. If not, I will certainly not miss attending that all too familiar dance that almost never pays off with the coveted goodnight kiss.

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What Happens in Just 60 Seconds in Social Media? [Infographic]

Posted May 19, 2012 by Rob Sullivan

What happens every 60 seconds in social media? A heck of lot more than I thought. Check out this infographic for some serious social media statistics.

3 Comments - Filed Under: Daily, Legal, LinkedIn, LinkedIn Discussions