I am that Classy Plaintiff's Attorney (bellowing outside the courtroom)

I was covering a case for my partner today and it was the first time that I met the opposing counsel on the case. For the last nine months, the only things I knew about her was that a) she can't write a motion or brief worth a damn and b) she is a wretched deposition taker.

In other words, she was not the brightest bulb in the box.

Our case gets called and I had no idea that she was going to be present, but there she was. Up we go, see the judge, get the order and that was that. On the way out, to a fellow Plaintiff's attorney, my outside voice said something mean:

"She is as ugly as she is stupid"

What can I say, I have a way with words.

Judging a Book by Its Cover: Dealing with Claims Handlers

Fifty percent of my case load involves chasing the ambulance personal injury litigation and the other fifty percent involves stretching corporate litigation. In other words 100% of my job involves fighting with someone.

Over the past several days, I have been dealing with a lot of claims adjustors on a multitude of cases that I am trying to get wrapped up. Thankfully, I’ve been able to settle several of my problem cases and reduce my overall stress level.

After concluding these negotiation processes, it is clear that it’s not stereotyping if it is true you can predict the experience you are going to have in the settlement process just by seeing the company name or organization that you are dealing with.

Corporate Insurance Carrier

Motto: "We never hurt you. But here is a pile of money for you to shut up about it."

These sorts of insurance carriers vary in size and quality, but the claims handlers tend to be able to quickly process a settlement demand. Since we have a high threshold for our potential clients (clear liability only if you please), we don’t often have negative experiences with these claims handlers.

Us: The client had neck surgery, has a fusion, and $150,000 in medicals. Our demand is $700,000
Them: I’ve got $25,000 to give you and not a penny more.
Us: F*** you. We’re going to trial
Them: Turns out my manager just authorized $350,000.
Us: Deal

This is the best case scenario as there is decent money, no litigation and a settlement check that clears when taken to the bank.

Overall Experience: Positive with a hint of melancholy as we did not receive more money.

Sub-Standard Auto Insurance Carrier

Motto: "Our drivers are barely legal, always at fault and we won't settle."

As my created motto implies, they provided insurance policies at the minimum policy allowed by law (in the State of Illinois that is $20,000/$40,000). The claims handlers are overworked, dispirited and probably abuse their pets. These insurance companies do not publish fax numbers, have no e-mail addresses and have set up shop in some obscure location (next to wherever Jimmy Hoffa is located). Attempting to negotiate with these people is like trying to drink water with a fork.

Us: Your insured hit our client, a pedestrian, who was walking in the crosswalk.
Them: There’s no liability here. We are going to litigate this and file a counter-claim against your client for property damage.
Six months later
Us: You’ve taken the depositions of every possible witness involved, your client admitted fault under oath and discovery is now closed. You know our policy demand is reasonable as my client was in the ICU for a month! The policy is $20,000. Medical bills alone are in excess of $250,000.
Them: I’ve been authorized to settle for $5,000.

You have to threaten them with withdrawing your offer, going for bad faith damages and hiring a hit man to kill their loved ones. It's not fun. Not. at. all.

Overall Experience: Extremely Negative. Dealing with these individuals makes me want to experience the birthing process while receiving oral surgery while doing my taxes.

Self-Insured Municipality

Motto: "Corrupt? No, Just incompetent"

As the name implies, this is the torts division of a major municipality who knows, I could be talking about Peoria. They are protected by law against “negligence” which “sucks”. I’ve had a dozen or so cases against this office and they all go on the same way:

Us: I’d like to talk to the handling attorney on the Jones Matter.
Them: …
Us: Hello? Hello?

Into the black hole everything goes. Each attorney I have ever dealt with in this office shares these traits: (1) never answer their phone, (2) they do not respond to letters or faxes and (3) They do not show up for regular court dates. If you are able to reach a verdict or settlement, good luck getting your check. Because it’ll get lost in the bureaucratic nightmare known as the “mail”

Overall Experience: I’m still waiting for one.

Typos: It’s called “Practicing” Law for a reason

Yesterday, ChicagoNow Blogger Extraordinaire Jen Fernicola had a piece about the number of typos in the complaints that she reads day in and day out for her blog. (As an aside, her site is a great resource for seeing what’s happening in the land of Plaintiff’s work in Chicago and I highly recommend it.) In this post, she highlights the typical mistakes that occur in lawyers reusing complaints. Me, being the sarcastic twit that I am, agreed with the post in a sarcastic twit-like comment.

That was yesterday.

Today, I was preparing a filing for federal court. I was 36 hours behind schedule with this motion and in a rush to get everything together and electronically filed. I opened a prior notice of motion form, entered the new date, saved it as a PDF and uploaded it into the Federal Judiciary Interwebsosphere.

I then realized the Judge’s name and courtroom, proudly set forth in boldface font, were both wrong. Hellllllllooooo glaring typo.

Here’s the thing: this sure isn’t the first time I’ve done this and it sure won’t be the last. In law school, I remember my first year talking with classmates asking how on earth could typos happen in briefs submitted to a court. “What sloppy attorneys. What hacks. We can’t wait to take their jobs!!!” Now, I am one of those sloppy losers.

I try and learn from my typographical faux pas but that doesn’t mean that I am free from the gaffe now and then. I can only beg the court’s forgiveness when I forget to spell check, misstate names or leave off attachments.

I’m not a total hack. I’m just a busy hack. That’s learning as he flies by the seat of his pants.

An Amazing Tuesday Morning: Cougars, Dancing and Attorney Fisticuffs

It started as a ho-hum Tuesday Morning. I was on the train updating my resume doing work on one of my many litigationally based cases and I was listening to music. Out of nowhere (ok, out of the shuffle wizard on my iPhone) “A Whole New World” from the Disney movie Aladdin starts to play.

I’ll give you a second to finish your laughing at me.

It goes from that classic Disney song into the BeeGees Staying Alive [Okay…laugh some more]. The day becomes awesome after this point:

The hilarity begins when I am sexually harassed hit on by a 40 something (wannabe-but-not cougar/puma) that is frequently on the same train as I am. The words “you look naked without your hat on” come out of her mouth. There were other things that occurred, but my mother reads this, and frankly, there’ll be enough questions about this incident. It was awkward and hilarious.

It gets better as the walk to the office contains several instances of openly rooting for jaywalkers to get hit by traffic. It was at this point, I posed the question to those around me at the crosswalk: “Is it chasing the ambulance if you ride in the ambulance with the injured party?” The answer, as I have determined, is no.

When I arrive at the office, my music had switched to a little Black Eyed Peas. As I was upbeat, I was dancing. And like that, another attorney walks by seeing me dance. Then my partner. With his son. There is no shame for me. It was funny. And it’s a good morning.

Off to court I went and the judge wasn’t there. So we wait for the covering judge to show. Three phone calls, one Illinois Supreme Court opinion, two games of scrabble and 200+ twitter entries later, the Judge shows up. It was a productive wait.

And now for the coup de grace:

As I am leaving the courtroom, I happen upon three attorneys immediately outside the doors. They are arguing. Loudly. “THIS IS A FUCKING MONEY GRAB BY YOU AND I AM SICK OF IT!” I turn the corner away from them. Then I hear a briefcase (or something) get slammed to the ground with a scuffle ensuing. I turn right back and witness these attorneys being physically restrained to calm suggestions of “You don’t want to do this” and “You’re a professional” and “Sweep the leg, Johnny!”

A fight. Between two attorneys. In front of the courtroom entrance.

I love this Tuesday morning.

This Monday is going for a sweep of the Suck Awards

First call of the day: Father describing son’s “botched” circumcision. In detail.

Second call of the day: Woman describing her brother’s “botched” oral surgery. Where he had 25 teeth pulled. Because he didn’t brush his teeth.

Legal Process of the Day: I got served. [The perks of being a registered agent]

Argument of the day: Arguing (and losing) what the law is with a records clerk. Apparently, I know nothing.

And the Oscar Sucker goes to…

Learning on the fly (as the plane is falling out of the sky)

Partner: Yeah, I am going to need you to find out about this area of law and what we need to do to file an action in it.
Me: I know nothing about this area of the law.
Partner: Me either.
Me: What sort of deadline are we looking at?
Partner: Monday.

Good thing it's supposed to snow this weekend.

Clients are Bi-freaking-polar

We hadn't heard from a client for about 5 months. Until the phone rang:

Monday—No Settlement Offer

“I want to drop my case. I don’t care anymore”

Tuesday—No Settlement Offer

“I don’t need the money. Please, let’s drop this case and just be done with it.”

Wednesday—Settlement Offer

“That’s an insult and there is no way that I can take that money. We’re going to trial”

Can't wait to see what Thursday brings.

Today’s lesson in motion practice: “Wherefore Plaintiff’s counsel is a dick”

Need to draft a Motion to Compel? Never done one before and have no idea what to do? Are you a law student looking to piss off a legal writing professor? Follow this easy template:

1. Your opposing counsel initiated this lawsuit on this day. I don’t know why you need to put this in here, but if your opposing counsel really is a dick, you should start creating your dick timeline as early as possible.

2. The second paragraph is where you tell the court why your opposing counsel is a dick: “He dresses like a goon” or “Smells like an old person” are acceptable entries here.

3. The third paragraph is your money paragraph, tell the court what you want and then tease what your about to write for the next 2 to 6 pages. “For the reasons listed below, Defendant is seeking the court enter an order barring the Plaintiff’s testimony, attorneys fees and costs, the summary execution of the Plaintiff’s counsel’s secretary and a player to be named later”

4. The next five to fifty paragraphs are a simple regurgitation of why your opposing counsel is a dick:

a. On or about February 1, 2010, opposing counsel kicks small children.

b. At all relevant times, opposing counsel fornicates with farm animals.

c. Opposing counsel is a Yankees fan.

5. Now it is time to restate what you are asking for. With snarky authority.

Just like that, you have a ready-made motion to compel.

Looking for an escape clause

I’ve managed to get out of all of my scheduled court appearances this week. That means I won’t have to make any 100 mile road trips for 28 seconds in front of the judge…at least this week. This also means that I won’t have a legitimate excuse to actually leave the office.

This is a problem.

I mean, don’t get me wrong, I love nine or ten straight hours without seeing natural light, breathing filtered air and staring at a computer screen. But, I feel wrong just leaving (damn you work ethic! DAMN YOU!). I really feel wrong leaving when I have six outstanding discovery projects, two motion to compels, five settlement demands and one complaint that all need doing (not to mention the other 28 things on my to-do list that need doing).

This could be a productive week. It also could be a week where I snap at one of the clients from h-e-you-know-where for calling when I am stuffing myself with lunch I’ve ordered in.

It’s like the grieving process: Responding to a Dispositive Motion

As any civil procedure professor won’t tell you, Summary Judgment is the tool that opposing counsel uses to tell the world that you are full of shit: Opposing counsel is telling the Judge you are full of shit. Opposing counsel is telling your firm that you are full of shit. And Opposing counsel is telling your mom that you are full shit.

But other than the public embarrassment, it can also end your case. Thus, it is something that cannot be taken lightly. In order for you to respond effectively, efficiently and with authority, one must approach the response brief with a time-tested formula (that my partner uses every time):

Day 1: The Arrival of the Motion

You knew this day would be coming.

You were told not forty-eight hours ago that opposing counsel would be filing this Motion. You are not surprised when the messenger arrives with a package for you nor are you surprised that it came so late in the day (the opposing counsel strategically sends it so as to implode your night).

The text of the motion is less than 15 pages, but with all exhibits attached this beast has grown to nearly 600 pages of disgusting horror.

You do not read the motion when it comes it. It sits on your desk like a phone book gathering dust and taking up space while haunting every fiber of your being. It screams “you suck!” and you sneak out of the office without so much as a heads up to anyone.

You are tormented by the fact that someone has called out to the world that you cannot bring a case where liability is solid. You begin to question your every legal decision that you have ever made. You believe that you are a total and utter hack. There is wailing and gnashing of teeth.

Sleep does not come. You lay sleepless working through every fact of the case. Over. And over. And over again…

Day 2: Stemming the negative tide

When you shake yourself loose from the stasis that you have fallen into, you begin to think about the positives of the case. That facts that you once made you believe that you were invincible to this procedural smear campaign start to emerge from their hiding spaces in your collective memory.

You begin to think positively in spurts and small doses; before those negative feelings of despair and malpractice begin to retake your conscious.

You return to the office and fill your day with work on other cases. You do not under any circumstance look, think about, glance at or dare read the motion. You do move it to a secure location, like Dick Cheney’s bunker (or underneath your trash can).

You finish a positive day at work, full of positive energy and head home to a glass of scotch.

Day 3: Damn the torpedoes, full speed ahead.

You awake refreshed and invigorated. You know that you are going where others have gone before. You are the Plaintiff’s attorney: defender of the victim, vanquisher of the negligent and you care about your 1/3rd!

Nothing that some hack defense attorney writes is going to stand in the way of your judgment, your expertise and your litigation moxie! Your new mantra is simple: you will cut opposing counsel’s balls off (even if she doesn’t possess a pair).

You begin to plot how you go Ezekiel 25:17 on opposing counsel. You begin researching case law with similar facts to yours, you send your associates and paralegals to Westlaw and IICLE to begin researching broad topics of law with the barest of connections to a possible argument that you may be facing.

You spend the entire day planning for the worst. But under no circumstances, do you read the motion.

Day 4: Read the Motion.

It’s a time-honored tradition. It’s also how to give yourself an ulcer without really trying.

Passively being aggressive

I don’t act out in public. At least not too often.

Yet, I find certain parts of my job more and more frustrating. Usually, this has to deal with the people that I come in contact with on a daily basis. Other times it has to do with my own stupidity. As a result, I have to find ways to let out my displeasure in ways that don’t end up with me a) losing my law license, b) in jail or c) both.

Thus, I have adopted petty subtle ways to ensure that my mental health stays in a good working order:

What you do: You refer to yourself as Mr. this or Ms. that.
Example: “My name is Mr. Smith and I am with XYZ doctor’s office”
Why I have a problem with this: I’ve gone through seven years of higher education, I’ve past a bar exam and have a job as a lawyer. I don’t feel that I deserve any special treatment just because of this, I want people to use my first name. I only use Mister or Miss to someone that deserves respect (or happens to be a friends parent).
My response: I address you by your first name. If you’re a real peach, I’ll add extra emphasis or go to a nickname. [You’re name is Daphne? Ok, Daffy…]

What you do: You demand to talk to my partner because as the associate, I “can’t help you.”
Example: Me “I think I can help you” You “I only want to talk to the partner, I don’t think you can help me…”
Why I have a problem with this: These people tend to be idiots. They believe that the more impressive the title, the news that they are getting will be better. This is not how it works at my firm. I work in lockstep with my partner only I get tasked dealing with the clients
My response: I put you on hold for several minutes and then inform you either a) my partner is in a meeting or b) I have no idea how to transfer your call because they don’t teach that IN LAW SCHOOL. [I must have missed that day in BarBri though…]

What you do: Channel assholedom in motion practice.
Example: I spend twenty minutes on the phone with a particular attorney discussing the upcoming discovery events that we both have to meet. No where in this conversation does he mention that he has filed a Motion to Compel which I receive seconds after hanging up with this particular lawyer.
Why I have a problem with this: Seriously? You have to ask?
My response: Sarcasm + Thesaurus = Wordplay. [That then are removed when my partner reviews my proposed reply brief] “Defense’s counsel’s sophomoric machinations that Plaintiff’s counsel has somehow violated the applicable discovery rules is an argument that at best is equal part laughable, part ludicrous that is served shaken, not stirred, in a frilly glass with an umbrella.”

It’s either this or I end up punching someone in the throat. And no one wins in that scenario.

Best thing anyone has ever said (before going into a child support hearing)

I'm hearing this eighth-hand (or quadruple super secret hearsay to the nth degree). But it's funny. Thus, I must share.

Prior to a child support hearing in the presence of a hundred or so fellow litigants, attorneys and court personnel, an aggrieved mother turned to her religion and screamed at her child's father:

"In the name of Jesus, why did I ever fuck you?!?"

Great story. Compelling and rich.

Doing the math on my billable hours

Billable hours and billing strategies are all the rage nowadays. At least that’s what I am told by Above the Law or the ABA Journal or maybe the voices in my head are getting uppity again. In light of this, I wanted to take some time to break down how I bill out my time.

Looking at it objectively, it seems that my billable rate depends on the sort of case that I am handling:

Corporate Litigation Defense Client: These are clients that have done something wrong but will not admit to it. In fact, its your fault as the attorney that they did whatever they did. My normal billing rate starts at $250 an hour. Until the first bill is received and the clients flips a gasket for the $15,000 invoice. The partner steps in and assures the client that all of the bill is accurate and that all of the work is necessary. Client “renegotiates” my billing rate and my partner informs me to stringently bill the client for all action performed [e.g. bowel movement while writing brief (0.2)].

$175 an hour. With each bill paid three months past due. Without interest.

Corporate Litigation Plaintiff Client: These people are pissed off and aren’t going to take it any more. They want to crush the poor peon (usually someone that doesn’t have the corporate structure to hide behind) and do so no matter what the cost. We love these clients.

$250 an hour. Paid within 24 hours receipt of the invoice.

Insurance Defense Client: This is the definition of sacrificial defense: you are going to lose here, the question is how many zeroes get tacked on to the loss. The insurance company has concluded that they won’t can’t settle and litigation is the only option. They typically call us up about 28 minutes before a deadline, let us know about it and tell us to get moving. We get about four or five of these a year. Thankfully, we only get about four or five of these a year.

Contractually stipulated to $150 an hour. With every billing entry scrutinized and objected to. So, really, $115 an hour.

Even though Plaintiff’s personal injury work is done on contingency fee, we can still break down what we do on a billable scale. The numbers, they are telling:

Pre-Litigation Personal Injury Client: This inevitably will be one of two types of clients: one with a great case or one with a great injury but no case. Typically, you can get these cases done in 10 hours or less; but the bigger injuries typically take about twenty hours of time.

No case: -$250.00, a pissed off phone call with the client and a “you’re fired” letter sent certified mail.

Great case: $5,000.00 an hour. Unfortunately, these are few and far between.

In-Litigation Personal Injury Client: The vast majority of cases that I have proceed into litigation, past the fact witness depositions and settle on the eve of the expert depositions. These are always a lot of work and tend to settle for far less than you had hoped. There’s lots of lawyery stuff going on here: pleadings, discovery, motion practice and depositions. But the writing is always on the wall and this will typically settle

$275.00 an hour.

The Trial Date has been set Personal Injury Client: It’s a lot like the above client. Only there is more work, questionable liability and not a lot of damages. I find myself asking “how on earth did we get this client in the first place?” far too often. I also find myself being forced to talk to the client often because they continually call to check up on their shitty case. The client believes that their case is worth hundreds of thousands of dollars, you believe that this case may be worth hundreds of dollars. The good news is that you are going to get trial experience. The bad news is that you have to waste your time taking this case to trial.

A finding for the Defendant: $0 and a stomach ulcer.

A finding for the Plaintiff: $4.27 an hour.

Tactical negotiations

18 months ago

Plaintiff’s counsel: If we go to trial, we will be asking for one million dollars. In an effort to resolve this, our client has authorized us to settle now for $500,000.

Me: You have no case. Our clients have asked us to politely tell you to go screw yourself authorized us to settle this case for $5,000.

Twelve Months ago

Plaintiff’s counsel: If we go to trial, we will be asking for three million dollars and punitive damages. In an effort to resolve this, our client has authorized us to settle now for $750,000.

Me: You have no case. Our clients have asked us to tell you to go fuck yourself authorized us to settle this case for $2,500.

Six Months ago

Plaintiff’s counsel: If we go to trial, we will be asking for five million dollars, punitive damages and attorneys fees. In an effort to resolve this, our client has authorized us to settle now for $1,500,000.

Me: You have no case. Our clients have asked us to tell you to go fuck yourself with a rusty pole authorized us to settle this case for $500.

Today

Me: You have no case. Our clients have asked us to tell you to go fuck yourself with a rusty pole outside in sub zero temperatures told us to litigate this matter until the bitter end, including any necessary appeals. They will also be seeking reimbursement from you and your client for our attorneys fees and costs.

Plaintiff’s counsel: If we go to trial, we will be asking for fifteen million dollars, punitive damages and attorneys fees. In an effort to resolve this, our client has authorized us to settle now for $20,000.

Me: Come again?

This career is now officially hazardous to my mental health

In the last three months, I have been drafting a sizable amount of pleadings in personal injury cases: Slip and Falls, Car Accidents, Medical Malpractice and so on and so forth.

Because, I’m lazy efficient, I’m a big fan of the cut and paste drafting method that allows a certain attorney (me) to do a ‘Find/Replace All’ name search, change the date, change the location and be done with the complaint. Now, this only works when the form complaint syncs with the facts.

Unfortunately my clients have the nerve to get into ‘unique’ accidents.

As is my process I get to know the facts of the accidents, I craft as many claims of negligent acts and/or omissions that I can think of and then I throw it at the wall to see what sticks. There is a lot of thought about how someone else failed, the phrase “And/or” gets used a lot and everything always ends with a “WHEREFORE” clause.

But now, I’m starting to see duty violations everywhere I go.

I’m driving in the car, approaching a car from behind stopped at the stop sign in front of me, and I can see the complaint being written against me:

1. Failed to apply the brakes in a timely matter;
2. Failed to keep his vehicle under control;
3. Failed to operate his vehicle at a safe speed.

It continues as my day moves forward, I go to Starbucks and the floor is wet, no cones are out and dammnit, here they come again:

1. The Defendant failed to warn individuals, such as Plaintiff Pamby, that portions of the walkable area of the premises would be covered in an unnatural accumulation of snow, ice and water.

It just never ends.

WHEREFORE I need help. Or just an affirmative defense.