A tale of two different types of Defense attorneys

While I certainly do not know all the intricacies of defense practice, I wanted to offer a small piece of advice from the other side of the “V”. Here is my recent experience with two different types of defense attorney.

The Mary Approach: The Proactive and Professional Defense Attorney

Let’s call the first Defense attorney Mary. Mary called the Plaintiff’s attorney at the start of the case to reach out and get more information regarding the facts of the case.  In addition, she developed a rapport with the Plaintiff’s attorney and created a nice professional relationship.  

Understanding the True Scope of the Case

After the initial discovery was complete, Mary called the Plaintiff’s attorney to get a demand on the case. The Plaintiff’s attorney made what Mary believed to be a high demand on the case. While the physical injuries alone on the case were not life threatening, Mary asked questions as to why the demand was so high for this type of injury.  Mary learned that there were significant economic damages on the case as the Plaintiff had missed over a year of work, and was not able to return to work on a full time basis. As her client was the target defendant, Mary learned that her client’s exposure on the case was significantly higher than she originally thought and if they case continued towards trial, the Plaintiff’s attorney would be forced to hire experts to support the economics claims which would only increase the settlement value as the case progressed.

Through developing a rapport with the Plaintiff’s attorney, Mary learned that the Plaintiff believed there was value to having the case resolved sooner rather than later, and now would have been the ideal time to reach a settlement for the lowest amount the case would ever settle for.

Strategizing for Early Resolution

Mary saw an opportunity and got to work.  Mary realizing her exposure was now 100% of a high six figure case.  Mary realized that she likely can get a co-defendant to contribute to the settlement.  Mary took the initiative and called the co-defense attorney and shared information with him.  Mary convinced the co-defendant that their contribution should be 50%.  Mary had her carrier evaluate the case, and sought contribution dollar for dollar from her co-defendant.  Mary and her carrier basically did the evaluation for her co-defendant (and carrier) by having them understand that they were only willing to put up 50% of how they currently valued the case.  Mary got authority from her carrier and co-defendant to make a real joint offer on the case.  

Open and Honest Negotiations

Mary called the Plaintiff’s attorney and had an open and honest conversation about the authority she currently had.  Appreciating the real offer, the Plaintiff’s attorney significantly lowered his official demand, and had an open and honest conversation with Mary about where he thought the value currently stood.  While Mary thought it was still high, she realized settlement was within the realm of possibility.  After speaking with her carrier, Mary came back to the Plaintiff’s attorney and offered a settlement range.  The Plaintiff’s attorney reported back, and demanded the dollar amount at the top of that range.  Mary reported back to her carrier and co-Defendant.  After Mary received the 50% authority of the settlement number, she followed up with co-Defendant multiple times.  Co-Defendant gave Mary the authority to offer 50% of the settlement number.  Mary did not try to nickle and dime the Plaintiff’s attorney by holding back the authority to save $5,000 or $7,500.  Mary called the Plaintiff’s attorney and settled the case for the previously agreed upon number at the top of the range.

Delivering Results

Mary and the Plaintiff’s attorney had a conversation that they appreciated their professionalism and enjoyed working together.  Mary made an ally on the other side of the V, and developed a sense of trust for the next time she works with the Plaintiff’s attorney.

In addition, Mary took a case where she had high six figure exposure, and significantly limited that exposure both by resolving the case early, and by having co-defendant contribute 50% by making their job easier.  All in all, Mary resolved the case for her client for likely 15 to 20% of their potential exposure. 

The Dick Approach: The Combative and Short-Sighted Defense Attorney

An Aggressive Start

Now contrast that to another attorney we will refer to as Dick.  At the start of the case Dick called the Plaintiff’s attorney to tell him that his client’s have no idea what this case is about and have no affiliation with the case at all.  The Plaintiff’s attorney informs him that there are permits on the subject property with his client’s name on it.  Dick says maybe so, but they performed work on the property long before the subject incident occurred.  Dick asked for the case to be dismissed against him on the phone call without showing any actual proof of their lack of involvement.  The Plaintiff’s attorney has to say no.

Ineffective Discovery and Repeated Denials

Months go by, and Dick provides the Plaintiff’s attorney with discovery.  Dick follows it up with a phone call, and says that the provided discovery clearly shows that his client did not perform work on the subject condition.  Despite the discovery documents clearly showing that Dick’s client performed work in the exact area of the property, Dick contends that maybe they did work in the area but the subject condition was not part of the scope of work.  Dick again asks for the case to be dismissed against his client.  The Plaintiff’s attorney declines.

Delays and Unproductive Motions

A few months go by, and when Plaintiff’s Counsel seeks to schedule depositions on the case, Dick make a summary judgment motion before any depositions have been held.  The Plaintiff’s attorney calls around to Dick’s co-Defendants who confirm that they believe Dick’s client to be responsible for unsafe condition at issue in the case.  The parties oppose the motion, and Dick’s motion is denied.  Dick files a Notice of Appeal.  While the motion was pending, Dick refused to move forward with discovery with the motion pending.

Disrespectful and Combative Negotiations

After the motion is denied Dick calls Plaintiff’s attorney again.  Dick tells Plaintiff’s Counsel that he was instructed by his carrier to call the Plaintiff’s attorney to see if the Plaintiff would take a piecemeal settlement from his client while continuing to pursue the case against the other co-Defendants.  Dick tells Plaintiff’s Counsel that they are seeking to pay nuisance value because at the end of the case Dick will just make the Summary Judgment motion again and after discovery it will surely be granted.  

Making Things Worse for Everyone

Dick speaks over Plaintiff’s Counsel and does not engage in a 2-way conversation.  When Dick takes a breath, Plaintiff’s Counsel sneaks in a few words that all the other Defendants say his client is responsible.  Dick immediately snaps back and begins to lecture Plaintiff’s Counsel.  Dick asks Plaintiff Counsel “Do you even know how construction works?”  Dick tries to blame everyone else but refuses to acknowledge any potential liability or exposure.  Dick learns on the phone call that he is likely the only defendant that has an insurance policy in place that would cover a settlement.  Dick angrily asks Plaintiff’s Counsel if it is expected his client will pay the full amount of the settlement.  Plaintiff Counsel responds that he has no idea because it will depend what comes out in discovery.  Dick is mad and disrespectful.  Dick never asks Plaintiff’s Counsel for a demand or has any discussion regarding the value of the case.  Dick talks down to Plaintiff’s Counsel throughout the phone call and attempts to bully Plaintiff’s Counsel before hanging up the phone.

Plaintiff’s Counsel is left slightly confused but on a mission to hold Dick’s client 100% liable and at fault.  Plaintiff’s Counsel will question the witnesses in such a way that targets Dick’s client as the at fault party.  Dick failed to eliminate any risk or exposure for his carrier.  Dick failed to see any point of view rather than his own.  Dick’s litigation strategy has caused his carrier and client to be in worse position.

MORAL OF THE STORY:  Don’t be a DICK, be a MARY!  

Relationships matter. Not just for settling cases but for litigation as well.  If you end up being a Dick, it will make it worse for your client and carrier.  You can have differences in legal opinions or the facts of a case but being a Dick only hurts.  Litigation is war. But even in war there are rules and laws of war.  A ceasefire or resolution to the war only happens in 2 ways: 1. Complete destruction of one side.  2. Some type of agreement between the two side.

I have no doubt that over the long run, litigating cases with the idea the almost all of the cases can be resolved by reaching some agreement will pay off in the long run rather than seeking complete destruction at all times.  Let me make this clear too, sometimes the agreement between the two sides is going to trial!  That is ok too.  Still from a practicality, and even happiness standpoint the way you view and choose to deal with your adversary matters.  Your relationship with your adversary does not need to be adversarial.  In the long run, you will go further and be happier if you view it that way.  I am sure of it.  Be a Mary.