How to Deal with Difficult Plaintiff’s Counsel

We all know who the “repeat offenders” are from the plaintiff’s bar. Whenever a letter of representation comes in from one of these commonly recognized lawyers, it says something about the quality of the claim.

Certain letterhead from a particular lawyer can indicate the claim is a legitimate one, possibly with some teeth to it. Other letterhead can hint that a claim may be littered with red herrings, unnecessary discovery, and over-reaching positions on damages. While the ultimate analysis of the claim comes from the hard facts involved, the plaintiff’s lawyer handling the case can often give us an early indication of the merits.

Plaintiff’s lawyers can be “difficult” in essentially two ways: good difficult and bad difficult. Competent and aggressive plaintiff’s lawyers will usually know their cases well—they are prepared and focused. They will accentuate the strengths and concede obvious weaknesses. These are the “good difficult” plaintiff’s lawyers.

However, some plaintiff’s lawyers can be difficult because they simply do not know their case well or they try to cover up weaknesses. They likely have taken the case without much investigation into its merits and often are the second or third lawyer retained by the plaintiff. They are the “bad difficult” plaintiff’s lawyers. Their cases require more digging and discovery by claims professionals and defense counsel. Once the value of the claim is grasped, much of the litigation process is about educating or convincing plaintiff’s counsel of the true facts of liability and damages.

There are many signs you can look for to determine if you are dealing with a “good difficult” or a “bad difficult” plaintiff’s lawyer:

The Complaint — When dealing with “bad difficult” lawyer, the complaint is usually poorly drafted, contains typos, and has sparse facts. It is usually a form complaint that may or may not fit the facts of the case—particularly when the lawyer is accustomed to handling minor car accidents and uses a form complaint that is for a more complex claim. A “good difficult” plaintiff’s lawyer on the other hand has a very specific complaint that, although not required in most jurisdictions, sets out the details of the factual allegations.

Written Discovery — “Bad difficult” lawyers use form discovery that may or may not be relevant to the claim. The discovery used is the same in every case regardless of the injuries or the underlying facts. “Good difficult” lawyers use discovery that is narrowly tailored to the case and asks specific questions designed to address issues unique to the claim.

Oral Communication — One of the first things I like to do with a new claim is to immediately pick up the phone and call opposing counsel, even before I receive the file from the claims department. I give the other side the opportunity to educate me about their case with a clean slate. “Good difficult” counsel will know the facts of the case and be able to talk intelligently about the strengths and weaknesses. They will see the phone call as an opportunity to get the ball rolling toward a good resolution for the plaintiff. “Bad difficult” counsel won’t know which case you are calling about, will have to find the file from among the many others they are working on, won’t be able to answer specific questions about the injuries, will ask to call you back when they have more time, and will not acknowledge any weaknesses in the case. Oftentimes, it turns out that they are not the person really handling the case in their office, even if their name is on the complaint. In general, it will not be a productive phone call for anyone except to educate you about the kind of opposing counsel you are dealing with.

Depositions — Plaintiff’s lawyers handling cases in unfamiliar territory are likely to take much longer depositions and ask questions that do nothing to move the case forward. These depositions typically take more time than they should and tend to run up defense costs. However, effective plaintiff’s lawyers know what they need. Their questions are very pointed, and they usually don’t spend time on subjects that aren’t going to uncover information about liability and damages.

Mediation — An effective mediation from the plaintiff’s perspective requires preparation. Although opening sessions are becoming less frequent, they are important to assess the preparedness of the plaintiff and their lawyer. If the opposition is well organized and confident in their case, they will welcome the opportunity to speak directly to their opponent. However, some mediators may try to protect a poorly prepared plaintiff’s lawyer by foregoing any opening sessions or direct communication between parties.

It is very important to educate yourself about your opponent. Over the life of a claim, the “bad difficult” plaintiff’s lawyer can run up defense costs with unnecessary or extended discovery. These cases also require more work by defense counsel to obtain basic discovery on damages that a properly prepared plaintiff’s lawyer would already have and be able to make readily available. Although you may have slightly higher defense costs in these cases, the indemnity value tends to be less. On the other hand, a well prepared, “good difficult” plaintiff’s lawyer will have worked up the case well because it likely has some merit to it. Although there is no substitute for thorough and independent discovery (regardless of what records are turned over voluntarily), it is possible to get an idea of the merits of the claim based on the quality and preparedness of your opponent.   

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.