Defense Lawyers and Others are Trying Plaintiffs’ Work for the First Time
By JOHN M. CUNNINGHAM
There are some new gunslingers in town that look a lot like some of the old ones … with different colored hats. A peek at Lawyers Weekly’s verdict and settlement reports over the past five years reveals an increasing number of million-dollar bounties being claimed by law firms or lawyers more traditionally known as bodyguards for defendants.
In fact, half of the top 10 verdicts for 2002 and 2003 were hauled in by full-service “business-oriented” firms, or by lawyers known primarily for defense work. What’s more, they’re not just landing awards for business-related cases like patent infringement, but also for sexual harassment, employer retaliation, medical malpractice, personal injury, civil rights violations and other claims usually handled by the plaintiffs’ bar. Many lawyers are reluctant to speak publicly about the trend, however, due to concerns over how they will be perceived by clients, the public and their colleagues in the bar.It is such a touchy subject, in fact, that some lawyers contacted by Lawyers Weekly for this piece would only offer anonymous commentary on the phenomenon.
“It used to be like a wedding — firms either sat on the bride’s side or that of the groom, and there was no in-between,” says one Boston lawyer.
But the general consensus is that increasing professional competition and a new economic savvy in law firms has caused the old paradigm to break down, and many say they are reaping both personal and professional benefits.
Boston lawyer Anthony R. Zelle, who has garnered contingent fees from seven-figure verdicts and settlements for Robinson & Cole — a firm with a healthy business practice — says that “more than five years ago, it took some convincing for firms to highlight a successful plaintiffs’ practice, but the more progressive-minded firms have recognized the benefits of representing both plaintiffs and defendants.”
He adds that more sophisticated institutions also recognize the value of hiring savvy lawyers who understand both sides of the game.
Other sources behind the scenes suggest that many insurance companies are no longer prize defense clients because they whittle down hourly rates while “nickel and diming” attorneys with fly-spec audits and second-guessing.
Law firms tracking profit margins have noticed that insurance defense fees, which generated 50 percent profit a decade ago, now yield paltry dividends with little appeal.
Edward C. Bassett Jr. of Worcester’s Mirick O’Connell adds that the entire economic landscape has changed, and that bank clients have shifted through constant mergers while a few captive firms perform much insurance work.
“Old firms are not getting by just clipping their coupons from banking and insurance work, so they have to diversify,” he observes.
Still, the old guard has been slow to change at some of the state’s top firms.“When some partners heard I was doing a civil rights case for individual plaintiffs, it was a little unnerving for them,” says Peter S. Brooks of Boston’s Seyfarth Shaw, who won a $1.5 million verdict in a suit against Hopkinton city officials.
He says the firm was halfway into a celebration of the verdict when someone exclaimed: “Hey, we’ve never celebrated a plaintiff’s verdict before.”
Douglas K. Sheff of Boston, who represents plaintiffs only, cautions exuberant defense lawyers to be careful about jumping the fence based on limited exposures.
“Doing this kind of work is no day at the beach and you can easily get burned,” he says, warning defense lawyers that — among other things — they must adjust to juror prejudice and provide support to needier clients overwhelmed by the system.
Changing Market And PerceptionsLawyers say that old boundary lines are blurring because of economic changes, a new savvy about firm management, and shifting perceptions of clients and lawyers alike.
Not so long ago, Bassett made a career of defending medical-malpractice cases, but now he does 100 percent plaintiffs’ work while remaining at a business firm.
Some firms with a traditional defense orientation, he says, now look at a certain amount of contingent-fee work as “kind of like an investment in an aggressive growth fund.”
Firms would not want to put all their eggs in that basket, but a small percentage invested in the right cases can add significantly to their total revenue, he suggests.
Brooks agrees, adding that “some people now count on contingency work as a bonus opportunity.”
He believes the enormous competition among firms in Boston “means that $400-per-hour rates for all of your work is just not reality any more.”
Brooks notes that blended rates, composed of modest hourly fees coupled with “success bonuses,” have facilitated acceptance of non-traditional work by lawyers.
Such blended rates, according to Brooks, have also facilitated the willingness of smaller clients to use larger firms to prosecute their claims.
“Clients like lawyers to have a stake in the outcome, and many are looking to get a break on hourly fees,” he says.
Lawrence G. Green of Boston’s Perkins Smith & Cohen believes that “hybrid fee arrangements” are a big part of recent shifts.
Green won a $2.2 million verdict involving charges of sexual harassment and retaliation in 2002, and he has taken on other non-traditional cases, such as a wrongful death case involving meningitis infection.
In recent years, other partners at his firm have also recovered significant amounts for individuals seeking compensation in employment suits and in securities arbitration claims against large brokerage houses.
“There may have been some apprehension about this kind of work in the past, but the results have been great and the partners now fully support it,” he says.
Brown, Rudnick, Berlack, Israels earned the biggest contingent fee in recent years — an amount expected to exceed $200 million — for its role in recovering more than $8 billion from the tobacco industry.
William M. Dolan III, chairman of the Boston firm’s litigation department, says “there is clearly a trend” away from old boundary lines, noting that his firm is now involved in another class action regarding tobacco in New York.
“Large law firms thought contingent fee work was ‘unseemly’ and ‘unsophisticated’ at one time, but that has changed for a couple of reasons,” he says.
First, Dolan explains that “some plaintiffs’ work is incredibly sophisticated, particularly in mass tort cases.”
Second, he says bluntly that “people began to understand there was a lot of money to be made with a tolerable level of risk.”
Dolan’s partner, M. Frederick Pritzker, recently landed a $9.4 million jury verdict in a personal injury case involving a tanker truck that rear-ended his client and left her a paraplegic.
He adds that “there is less and less trepidation among partners as the success continues with this kind of work.”
But this shift is not just a large-firm phenomenon.
Thomas F. Healy of Wellesley’s Healy & Healy has taken a number of “strong and meritorious” cases for plaintiffs in recent years, despite his firm’s client base in insurance defense.
Although he has earned a number of seven-figure settlements as an advocate for plaintiffs, he continues to work closely with a number of insurance clients.
“A few insurance companies are looking at the old way of doing things, but most are looking for good lawyering at a good price,” he says, adding that clients in general have become more sophisticated and less dogmatic about lawyer selection.
Leonard Y. Nason of Bedford’s Nason, Wall & Wall is also part of a small office that has represented both injured workers and their employers in the context of workers’ compensation.
He notes that even plaintiff-oriented firms have “crossed over” more recently in his field, asserting that the changes are economically driven.
“Insurance companies are going under or leaving the field, some companies are not settling cases at all, and some lawyers are just taking whatever comes their way,” he observes.
Some insurance companies, Nason adds, have priced lawyers “like commodities,” causing a number of attorneys to look for other business.
Benefits And Risks
Lawyers who have crossed over say that working cases from different angles not only makes them better advocates, but provides certain psychic benefits as well.
Nason claims that “doing both sides definitely makes you a better lawyer.”
Some sources reinforce that, pointing out that many of the Bay State’s best plaintiffs’ advocates — such as Boston’s Patrick T. Jones — began their careers as defense lawyers.
Nason says that “a lot of plaintiffs’ attorneys don’t anticipate all the defenses that can catch them by surprise” simply because they are not used to poking holes in their own case from a defense perspective.
Conversely, Nason prepares all cases he defends by anticipating every issue he would throw at someone as a plaintiff and every strategy for trial presentation.
Healy agrees, adding that there are specific trial skills that are best sharpened from opposite sides of the table.
“Defense lawyers tend to cross-examine better because they are constantly reacting to the picture that a plaintiff paints, but plaintiffs’ lawyers have to create more by telling a story through an order of witnesses and a structure of evidence,” he explains.
Brooks affirms that point, adding that “I learned the value of striking first and taking the offensive from being on the plaintiff’s side in litigation.”
He surprised witnesses from the defense by calling them first in his civil rights case, and conducted a line of questioning to impeach their credibility before they could ever tell their story.
As a result of taking the offensive, he also thinks he is better prepared for someone to take specific offensive actions against him.
“I thought about how I would react on the other side, and realized that when you have an opportunity to put your own client on cross, you can lead him as witness and that has advantages,” he says.
Healy also thinks that lawyers who have been on both sides are more capable of resolving cases without a trial because they can understand the rational process, the data and the channels of authority that can affect each side’s decisions.
That ability to understand both sides can help present a case to the bench as well, he believes.
“Judges are looking for candor and believability, not rehearsed lines from a crusader, and it is to the client’s benefit to have a believable lawyer,” he asserts.
While some agree, Pritzker is skeptical about the effects on courtroom credibility.
But, he says, there are other benefits for larger firms working primarily on commercial matters that are often technical and dry.
“The energy of your staff is greater and the morale of the department and even the firm goes up when you take on cases with human or public interest,” he explains.
According to Bassett, it is simply “more personally rewarding” to recover a $2.15 million award for a 9/11 victim or a $2 million settlement for a young boy maimed by a dog.
Plus, business clients, such as executives, doctors and lawyers can also get injured, and a blended practice provides a way to represent them, he says.
And some maintain that as clients become more sophisticated, they actually appreciate the value of having lawyers who know both sides of an argument.
Green points to the president of one of his corporate clients, who expressed his support by referring good plaintiffs’ actions to the firm.
“These cases also spin off other work,” he says, noting that one of his clients who filed an employment-related claim later established her own business and became a corporate client with other business referrals.
But the benefits to non-traditional work do not come without risks.
Sheff asserts that defense lawyers who are not prepared to go on the offensive and get to trial will encounter juror bias that they don’t normally deal with.
He says that advocates for plaintiffs need training in the latest techniques for ferreting out bias in voir dire to get a fair trial for the client.
And he rejects the notion that “wearing the other hat” automatically makes a better lawyer, contending that counsel on either side of a case should be acid testing the weaknesses of their cases with focus groups and other techniques for self-criticism.
He also asserts that unwary defense lawyers could easily overlook the difficulties of communicating with and providing psychic support for needier, less sophisticated clients who are often physically and emotionally damaged and unprepared for the challenges of the system.
Alan S. Pierce of Salem, president of the Massachusetts Academy of Trial Attorneys and a lawyer who successfully shifted from insurance defense work, agrees.
“Communicating with injured clients can be a big problem if you are not used to it,” he says.
“The individual plaintiffs are not like insurance companies — they may not understand the volume of work and the delays in the system and they need a lot more support,” he adds.
Brian C. Dever of Taunton’s Keches & Mallen, who has pulled down seven-figure verdicts and settlements in construction liability cases, started out as a defense lawyer for Liberty Mutual.
“Defense is just a different mind set of slowing things down, and plaintiffs have to be up tempo all the time,” he says.
He cautions lawyers that unless they are geared to being aggressive, they cannot push themselves and their clients through the obstacles to trial.
Dever also notes that firms like his “have a framework to fund a case,” noting that “you have to put settlement or verdict money from every win toward future litigation” because of the expense and long-term investment needed for plaintiffs’ work.
Defense lawyers who have crossed over caution that there are always ethical conflicts checks that must be done in these cases, but they also warn that there are other conflicts.
“If a defense lawyer is repeatedly using an argument to deny a benefits claim to an employee [or rejecting a class status], it is hard to argue on both sides of that in court,” says Pritzker.
Furthermore, there are many appeals that can wipe out the most satisfying of victories that took an enormous investment to produce.
Brooks, for example, won a $4 million lender liability verdict against a bank, only to see it wiped away by the Supreme Judicial Court on a defense theory that failed in trial court.
“It can be pretty devastating,” he admits.
That’s another reason his firm and others often do exhaustive profitability and risk analyses before deciding to take on a case.
Can Bigger Be Better?
Sources differ over the relative advantages that larger firms can bring to bear on plaintiffs’ cases, but the debate has some life to it.
Pritzker, who started his career as a personal injury lawyer, contends that “staying power” is a big plus factor for larger firms in litigation.
“Insurance companies are not going to wear us down,” he says, noting that his firm is prepared to commit whatever resources are necessary to win a case.
In fact, Brown, Rudnick invested roughly $10 million of time and expense in the tobacco litigation against a group of defendants that previously had never lost at trial.
Pritzker’s firm, like a number of larger firms, now also butters part of its bread by suing insurance companies over coverage determinations, so they also know how to reach into insurers’ pockets.
He says that the firm utilizes equipment and techniques in which there is already a heavy investment for the benefit of business clients.
“We have all these systems for the analysis and production of documents on a massive scale, and we can put them to use in these cases,” says Pritzker.
He says a smaller shop is not likely to have the capability to punch up documents at trial that are imaged and indexed for immediate access, allowing for impeachment of a witness who makes a misstatement or bolstering of an expert’s testimony.
Nor is a solo lawyer likely to have his own in-house graphics department to blow up a piece of evidence or a pie chart that emerges as being critical right in the middle of trial, according to Pritzker.
Zelle agrees, noting that his firm has invested significant sums of money to win a verdict or settlement for plaintiffs.
In fact, his partner, Alex H. MacDonald, spent nearly $300,000 in preparation for Daubert hearings alone to counter the allegations of junk science raised prior to a January 2000 trial regarding the safety of the drug fen-phen.
That preparation paid off in a settlement rumored to be in excess of $13 million for the family of an individual plaintiff who died three years before trial.
But Sheff counters that “no plaintiff’s lawyer should take a case without being prepared to spend whatever it takes.”
Sheff says he has spent hundreds of thousands of dollars several times in order to pursue a good case.
Dever agrees, noting that you have to be committed to the case from beginning to end because you don’t know what will happen as it progresses.
He says he had two great cases in the last few years that settled for a total of roughly $2 million, but they did not look nearly so promising at the outset.
Defense firms that do profitability analyses to take the best cases may not be willing to take the tougher cases or stick with them when the outcome looks bleak, he contends.
“They’ve had some recent victories, but that’s because they’re just cherry-picking the good cases,” says Dever, who contends that a winning record is easier to compile picking the handicapper’s favorites.
Sources at larger firms don’t deny that they are looking for the best cases, but they assert that this very focus makes those cases special to them.
“When we take on a [plaintiff’s] case, it is with fresh eyes and sharp focus, and not as part of a mill,” says Pritzker.
But Zelle says that defense lawyers who are thinking of trying non-traditional work need to be prepared for how much of their focus can be drawn to one case.
“These cases have a life of their own, so one case can quickly take up 100 percent of your time when you never thought it would,” he says.
