Litigators — or perhaps litigators who are repeat players in a particular field — learn to hate people. Personal injury insurance defense counsel come to believe that all plaintiffs are lying fakers. Personal injury plaintiffs’ lawyers come to believe that all insurance defense counsel are tightfisted jerks who never pay a claim.
Maybe this is natural. If you spend eight hours every day repeatedly doing the same thing over the course of many years, you become what you do. It’s hard to break out of your role.
In-house litigators will naturally learn to hate different sets of people depending on the companies for which the litigators work. Think for a minute about an in-house litigator who defends mass torts for a pharmaceutical company. Time after time, for decades on end, you’ve lived the same scenario: Something pops. (That could be an episode of 20/20. It could be a single large jury verdict. It could be a drug company’s — or the FDA’s — decision to recall a product.) After the pop, the deluge. Lawsuits arrive by the mailbag full, as lawyers representing individual plaintiffs or putative classes of plaintiffs seize the day.
Who does the in-house litigator at a drug company learn to hate? The mass tort plaintiffs’ bar. “It’s always the same thing: We discovered a molecule to try to cure a disease. 60 Minutes ran a harebrained exposé. And now tens of thousands of people are shocked — shocked! — to learn that our drug hurt them? Damned mass tort plaintiffs’ bar. I hate that gang!”
Suppose you’re an in-house litigator at a company in the music business. Who do you learn to hate? Time after time, for decades on end, you’ve lived the same scenario: You put a musician under contract. You produce and publicize his work. And now it turns out he stole the damned song! After years of defending these lawsuits, you quickly come to hate the very people who make your business thrive: The performing artists. You experience only the bad events, so you come to hate the breed. That’s pretty dangerous, because you’ve learned to despise your own business partners.
But I suspect it’s worst for in-house lawyers who defend professional services firms. Suppose you’re an in-house litigator at a big accounting firm, and you get called in to defend the “non-existent inventory” cases. Time after time, for decades on end, you’ve lived the same scenario: Your accountants audited some company and gave it a clean bill of health. It turns out a zillion dollars worth of inventory did not in fact exist. The company goes under, and the ensuing lawsuits plead that your audit colleagues should have opened some boxes and realized there was no product inside. Who would you learn to hate?
Your own colleagues! “Come on, guys! If you’re going to attest to the existence of inventory, how about checking to see whether the inventory exists? And this isn’t an isolated example! Year after year, in audit after audit, we never bother to verify the existence of inventory! How can I work with such morons?”
Now you see the danger: Your colleagues are not in fact uniformly moronic, and you’ve drawn your conclusion after observing only a horribly skewed cross-section of events. Like the cop, you’ve drawn a mistaken conclusion about everyone based on the sample that you observed. And you’re actually making a more fundamental mistake than the cop is: Unlike the cop, you’ve drawn a mistaken conclusion about your own co-workers.
I have to believe that in-house litigators who work in that type of environment and draw the wrong conclusions are like the ball turret gunners of old: They won’t last long in the job.
Mark Herrmann is the Vice President and Chief Counsel – Litigation at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law (affiliate link). You can reach him by email at [email protected].