Intangibles of Case Evaluation, Part Two: Evaluating Opposing Counsel

Last year, I received a complaint for a simple two-party premises liability case. The complaint was 13 pages and contained four counts by name, although many other allegations were vaguely alluded to in those complaints. Despite the verbosity, the complaint failed to classify the status of the plaintiff on the premises (licensee, invitee, etc.) and failed to allege a duty owed by my client.

I researched opposing counsel, whom I had not worked with before. I found information on a general practice, and, in addition to personal injury, the website solicited work in criminal defense, specializing in DUI infractions. As the case progressed, the discovery requests I received actually exceeded the number allowed by the local rules. The deposition of the insured was three hours long. The “final” demand was unreasonable considering the injuries. We ended up trying the case and got a defense verdict (and probably should have received a directed verdict before the case got to the jury).

Contrast this to a complaint that contains only two counts that set out the basic law and facts and in which discovery is succinct and to the point, depositions are focused on the issues, and the demand letter documents and supports the plaintiff’s claims. This tends to be the case with effective plaintiff’s counsel. These lawyers usually specialize or have significant experience in the type of claim involved. The cases are well prepared and researched before the case is filed and have demands that may be high initially but that are ultimately backed up to some degree by the testimony. These are the cases that usually settle because plaintiff’s counsel knows the strengths and weaknesses of the case.

RELATED: The Intangibles of Case Evaluation, Part One: Venue

Few intangibles give you a better indication of the value of the claim than an assessment of counsel for the claimant. Perhaps more important, your assessment of the lawyer handling the claim also can tell you whether the case has the potential for an early settlement. There is no substitute for a thorough vetting of the facts and an accurate analysis of the law. In fact, a good plaintiff’s lawyer knows this and will try a case effectively based on the facts and the law. However, there are some important factors to look at when sizing up plaintiff’s counsel that will give you clues about what direction the claim is heading.

Firm Size. Many plaintiffs firms are comprised of just one lawyer and a secretary. To take a case to trial requires shutting down the office and turning on the answering machine. That brings with it a business cost. Small shops like this have a harder time allocating resources to effectively manage their caseload. They may be willing to explore an early settlement. On the other end of the spectrum are larger firms with multiple lawyers, paralegals, and support staff. They have more human and financial resources and can afford to take a marginal case to trial.

Breadth of Practice. The more general the practice, the less experience plaintiff’s counsel may have in the type of claim you are handling. This is particularly true of more specialized claims. If the lawyer’s website indicates a general practice that covers everything from personal injury to criminal law to probate law, he is less likely to be versed in civil trial skills and not as familiar with legal nuances. On the other end of the spectrum are firms that specialize in the type of claim you are defending. Commercial claims, product liability, trucking law, professional liability, and other specialties all require specified factual and legal knowledge. Lawyers with a general practice are typically not as effective with these claims.

Depth of Analysis. Poorly written and ineffective demand letters tend to contain more conclusory statements about damages, such as how the claimant’s lifestyle has been affected, how good an appearance they make, and other things that cannot be evaluated without a deposition. Effective demand letters accurately analyze and cite the law, specifically on liability. They are also backed up by documentation. Beware of the lazy, kitchen-sink approach to documentation that doesn’t cite specific records. An effective lawyer will both cite specific records backing up the allegations and offer to provide more context if requested.

Years in Practice. There is no substitute for experience. The more time in the courtroom, the more effective an advocate counsel will be. Take the time to look up the bar date of plaintiff’s counsel. If that information is not available, call defense counsel and ask.

Artfulness of Complaint and Initial Discovery. A good lawyer knows the quickest and most effective means to recovering for his client. He will draft a complaint that contains claims with merit and will avoid a vague “shotgun” complaint. Discovery will also be direct and to the point. Poorly drafted discovery will contain form questions used in every case from product liability to trucking to workers’ compensation with a few specifics sprinkled in.

Deposition. A lawyer with a good grasp of the claim knows what is needed out of a deposition, particularly the deposition of the insured. In most cases, effective depositions of the insured are shorter than ineffective ones. Ineffective plaintiff’s lawyers will waste time asking a myriad of questions that have no bearing on liability or damages. On the other hand, a good claimant’s lawyer knows the shortest distance between two points is a straight line. He will ask direct, pointed questions designed to elicit concessions that are helpful to the case against the insured.

Prior Experience with Defense Counsel. One of the most significant advantages a defense attorney can bring to your claim is experience with plaintiff’s counsel. In addition to having knowledge of the factors discussed here, a good working relationship between defense counsel and plaintiff’s counsel often means issues can be resolved with a phone call.

Prior Experience with Claims. Just like defense counsel’s knowledge of the claimant’s attorney is helpful, past dealings within the claims department can also be helpful. Take the time to ask colleagues who are managing claims in the same jurisdiction for the benefit of their experience.

Negotiation Style. An effective claimant’s attorney will have a good analysis and assessment of liability and damages and won’t drastically change that assessment unless new or additional information requires it. Of course, this does not mean that the number demanded is not negotiable. However, a demand that is way out of line with your analysis can be a sign that your opponent does not have a good grasp of the claim.

Ineffective counsel for a claimant often causes more problems and more defense costs than an effective one. The claims take longer to resolve and have a greater chance of going to trial. It is important to size up your opponent and design a resolution strategy that takes the defense attorney’s strengths and weaknesses into account. While this knowledge will not affect what “fair and reasonable” is under the facts and the law, it will help you know where the claim is ultimately headed and your path for getting there.    

Jim Pattillo is a partner with Norman Wood Kendrick & Turner, an Alabama-based law firm. He has been a CLM Member since 2010 and can be reached at jpattillo@nwkt.com, www.nwkt.com.