A Foot in Each Camp

Thoughts following my attendance at the WV Association for Justice 54th Annual Convention and Seminar: I love being a plaintiffs’ trial lawyer. By definition, we represent individuals. They are often facing one of the more trying times in their lives and are  up against someone or something more powerful and wealthy than they. It is a terrific feeling to level the playing field and help someone achieve a just result (or just “to win!”).

Small firm and sole practitioners sometimes lose their focus and feel they are the only ones fighting the good fight. Many, of course, are not passionate about what they do. The work is just a job. They long for eight hours a day, a steady paycheck and benefits, and a job without stress.

I love the thought of less stress, but have dealt with it for 40 years and see no way to eliminate it. I have learned to lessen it. The tips and techniques I discover and pass on allow for greater productivity and more enjoyment in the task. Solving a task and moving on to another is the story of my life.

My attendance each year at the WVAJ annual meeting recharges my batteries and reminds me that many WV lawyer seek excellence.

Simply sitting for two days and listening to some of the best in the business talk about what they have learned and how they apply it reminds me that I am not the only “smart guy” out there. WV has hundreds of very sharp, very dedicated lawyers, men and women. The best come at it with fire and passion, and it is contagious.

I have been writing a lot about efficiency, collegiality, mediation, and negotiations. I have also written about disingenuous lawyers and maddeningly inefficient judges. (Recently I sat for 2 1/4 hours as one of at least four cases the Court set for 9:00 a.m. How arrogant to cause 8-10 litigants to pay their lawyers up to $1000 extra dollars for ‘the convenience of the Court’!)

Two very fine lawyers, Jamie Bordas (son of my friends Jim and Linda Bordas) of Wheeling and Gary C. Johnson of Pikeville, Ky. spoke on settlement negotiations and trial preparation and voiced opinions that appear to be contrary to my writings. After some pondering, I do not think they are.

Jamie challenged the old truism that the best mediated agreement is probably one where both sides are somewhat unhappy with it. He believes the best one is where we leave the room, clench our fist, and say “YES!”

Those of you who have read how frustrated I get at lawyers who obfuscate, prevaricate, and simply use dirty tactics will wonder how I reacted to Gary when he says, “Let them. I do not care. It runs off of me like water off a duck’s back. It just makes me feel better when I beat them.” Now there’s a fellow I want to emulate.

Jamie told two excellent anecdotes:

1. His class team assignment, while a student at Notre Dame, was with classmate Jerome Bettis. Yes, that Jerome. The one all Steeler’s fans love. They negotiated to a standstill for four hours, being the only members of the class who failed to reach agreement, only to learn that they were the only ones who passed the challenge. The dispute was one that could not be negotiated with fairness to both parties. Those who gave in let their client be short-changed. What a great teaching too. I have learned some of my best lessens from my mistakes.

2. Jamie’s college avocation was selling and trading tickets to Notre Dame football games. He was shrewd enough to select one type of buyer. The guy in the nice car with a pretty girl at his side. According to Jamie, “Those guys were NOT going to fail to get that girl into that game.” So, of course, they paid the highest prices because Jamie knew they “wanted it too bad.” I pondered the double meaning of “it”.

Jamie and Gary, of course, have warrior mentalities. But, I stress that while each counseled us  to negotiate tough and prepare well, neither suggested we resort to unethical or questionable behavior. But, trust me, if they were hockey players, it would not be a polite form of hockey.

Both reminded the audience that our adversaries do not care about the harm their client has done to ours. They do not want to make us feel better. They want to win, to save money for their clients, to feed their families, and to do well in their profession. I have heard such words from my wife Nancy, who understands human nature and reminds me to keep my guard up.

Please understand something. I agree with them. I detest losing. I want my clients to get a great result. I want people to admire me as a lawyer and person. I have more of that abrasiveness that my friend Mike Aloi taught, in another session, that we should try to avoid. My tendency over the decades has been to push hard for my client’s position, sometimes too hard. This tendency is one reason I have spent time thinking about collegiality and professionalism.

And you also need to know that Gary and Jamie have outstanding reputations, as do their firms, and they get the really good cases. Recently, I was on the other end of that scale. I had agreed to accept a minor role as “local counsel” with an “out-of-town counsel”. Then this  “lead counsel” dropped the ball and got himself fired, and I was verging on trying a case I could not win.

I was holding perhaps a pair of twos. I followed all of their tips, made sure I had good experts, and prepared as if we were going to trial. Eight hours of mediation got us a meager settlement, but it was a meager settlement in a case that never should have been filed. It was a great lesson; do not sign on as “local counsel” unless you are not ready to take on the full responsibility of the case.

1. So “camp number one” in my title  is Jamie’s and Gary’s world, of personal injury, malpractice, industrial injury, and insurance bad faith. The adversaries are wealthy and powerful, and the liability component is usually strong for plaintiff. AND, the issue is money, how much if any money?

2. But, look at the difference in “camp number two”, family law mediation. The parties often were married. They certainly were intimate. They believed they loved one another. Usually they have produced a child or children together, and they built whatever estate they have together. The personal injury victim and the tortfeasor can walk away after the money changes hands and never see one another. Often these people cannot.

Divorcing parties or parties with children still have to raise those children. There are schooling decisions, discipline, medical treatment, graduations, failures, weddings, births, funerals. They have to learn NOT to ruin their children’s lives by screwing up the divorce as badly as they did the marriage.

When we seek money for our PI clients, the more money the better! Everything we squeeze out of the other party in a family law case, diminishes the ability of that party to pay his bills, provide for his family, and live a secure existence.

I have seen people pull back from what I recommended or the court would give because they felt it was too great a burden on the other side. I like such people, although they can be frustrating.

And, if you “don’t care” what dirty trick the other counsel does, are you really being true to your profession?

Should we not call out the other party on such silliness;

1. As the lawyer who claims not to know what a “significant other” is in a discovery response;  

2. Or the one who is trying desperately to keep out an e-mail because he knows it is a smoking gun proving his client’s infidelity (and she wants to be able to lie to the court about it); 

3. Or the one who answers under oath that she has not identified any witnesses or potential exhibits two weeks before she discloses 24 witnesses and 100 exhibits?

I think we should, and I think judges should,  penalize dirty players, which they will not do most of the time. To them it is just “petty squabbling by the lawyers”. Sadly, the do not seem to expect high standards, and often they get what they expect.  

I was raised to believe in right and wrong and believe in playing by the rules . In the heat of battle, have I done otherwise? I take the “fifth amendment”.

Finally, the family law client usually has nothing like the resources available to them a the client with a contingency fee contract, where their lawyers may advance $20,000-$50,000 in funds and more than that in time.  Those firms are prepared to spend six, even seven, figures in litigation expenses, with a prospect of a BIG contingent fee. There is risk of loss of course, but these guys and their firms often “win big”.

I have put $10,000 of time into a case knowing I would never get paid. Once it was $30,000 (don’t like to think about it) Those are the cases where the other side has pissed me off, or the client is very worthy, or my reputation is on the line. But, most of the time, costs MUST be considered in a family law case.

Still, it is nice to have a foot in each camp, and to remember that our clients need us to be warriors. It is also good to remember that our clients need us to understand people, and human nature, and to be able to take the long view. Will getting you the motorcycle really change your life over time?

I have been at mediations where we said at the end, “Yes!”. I have been at others where we just said “Whew!”; and even ones where we said something unprintable but took the deal anyway.

A good general trial lawyer maintains a proper balance between being a warrior and a pragmatist, as Jamie recommended when he reminded us not to let our egos get in the way of a fair settlement.

I will try to follow Gary’s advice and allow the bad behavior roll off my back and to have the payback be my results. That was very good advice.

This post was written by Burton Hunter