The Billable Hour: Perpetuating The 'Home Alone' Phenomenon Of The Civil Justice System
Sometimes plaintiffs’ lawyers feel like unwilling actors in a series of bad movie sequels. When will the madness end?
Do you remember the Christmas movie Home Alone? The 1990 holiday hit centered on the adventures of a little boy who was accidentally left home alone by his parents during the holiday season. After thwarting a couple of bad guys, the boy was reunited with his family on Christmas morning. The film raked in $285 million during its original release and is still the highest-grossing Christmas movie of all time.
The Home Alone franchise was dusted off in 1992 for a lucrative sequel. Again, the little boy found himself alone for the holidays, thwarting the same bad guys. Predictably, the boy was reunited with his family on Christmas morning. Audiences flocked to the theaters. Home Alone 2 brought in $173 million during its original release, making it the third-highest-grossing Christmas movie of all time.
The Home Alone franchise didn’t stop there. In 1997, Home Alone 3 was released to moviegoers with a similar plot and new protagonist. In 2002, Home Alone 4 premiered as an ABC television movie. In 2012, the fifth installment was released to television audiences. All totaled, the Home Alone franchise produced five versions of basically the same movie and raked in millions of dollars along the way.
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Sometimes plaintiffs’ lawyers feel like unwilling actors in a series of bad movie sequels. These sequels are typically directed by insurance adjusters or corporate counsel and incentivized by the almighty billable hour. Despite the predictability of the eventual outcome of certain cases, these sequels are forced upon plaintiffs’ lawyers as a means of maximizing the investment of funds that will eventually be paid out by the culpable party.
Plaintiffs’ lawyers typically find themselves trapped in this “theatre of the absurd” with their best cases. These are the cases in which liability and damages are clear to both the plaintiff and defense attorney. These are the cases in which there exists clear precedent for the contested issues of fact and law that provide a well-defined framework in which the case will be decided. These are the cases in which both sides have hired the most vetted experts and their opinions overlap to a large degree. These are the cases that seem ripe for early resolution but linger on through frivolous defenses, duplicative depositions, and petty motion practice.
The dirty little secret that is unknown to most outside of our world of litigation is that there are a lot of cases that fall into this category. Movie sequel cases whose outcomes are highly predictable but are nevertheless re-litigated just like the originals as a means of maximizing the investment of funds that will eventually be paid out. The culpable parties reap the benefits of the delay associated with these sequels, as funds that will eventually be paid out sit in investments for longer periods of time, yielding higher returns and lessening the financial blow of an eventual payout. In these cases, Biglaw is compensated by way of the billable hour not to “win,” but to simply keep churning out full-blown sequels as a means of delaying the inevitable outcome.
The actors in these civil justice sequels know how these movies will end. Some played their roles in the original versions that created the framework in which these sequels will be decided. But once again, like a bad movie sequel, the actors must recite their lines, change their costumes, and manufacture drama before the credits can roll.
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As a result, frivolous defenses are pleaded. Discovery disputes are manufactured. Document dumps are embraced. Depositions of useless witnesses linger on for hours. Daubert motions and motions for summary judgment are filed with absolutely no chance of success. Eleventh-hour pleas for continuances of trial dates are routine. Meritless appeals are filed. All of these moves are made simply as a means of perpetuating the plots of these bad movie sequels.
The plaintiffs’ lawyer plays her part by necessity. Oppositions are filed to the frivolous motions. Appearances are made at the useless depositions. She works hard to get the credits to roll as soon as possible so that the audience can go home. She has no financial incentive to perpetuate the manufactured plot of these bad sequels. She is paid on a contingency fee basis.
But the billable hour provides the opposite incentive. Hour after hour is spent delaying a predictable outcome. Sequel after sequel is litigated. The Home Alone phenomenon of the civil justice system rolls on.
Jed Cain is a trial lawyer and partner with Herman, Herman, & Katz, LLC in New Orleans, Louisiana. Jed writes about family, the law, and Louisiana current events at Cain’s River. He can be reached by email at jcain@hhklawfirm.com.