The Most Important Thing You Need To Know About Plaintiffs’ Lawyers

To understand the psyche of a plaintiffs’ lawyer, one must understand their unique relationship with the inherent risk of losing.

Big wins often define plaintiffs’ lawyers. Big wins garner public attention. Big wins scare corporate defendants. Big wins spark debates about tort reform.

The plaintiffs’ bar is feared by some because of its ability to hold powerful entities accountable for wrongdoing through the civil justice system. Short-term corporate accountability is achieved through big wins. Big wins are often the catalyst for long-term systemic change. Ask the tobacco and asbestos industries.

While big wins often define plaintiffs’ lawyers, they offer very little insight into what actually makes the best plaintiffs’ lawyers (and the plaintiffs’ bar collectively) tick. To understand the psyche of a plaintiffs’ lawyer, one must understand their unique relationship with the inherent risk of losing.

Most of the civil legal profession is underwritten by entities focused on risk minimization. Minimizing risk on the front end by drafting advantageous transactional documents. Minimizing risk on the back end by litigating cases from a defensive posture. Risk minimization creates a certain world-view. It fosters a certain relationship with the inherent risk of loss associated with litigation.

The plaintiffs’ lawyer’s relationship with that risk of loss is much different than their colleagues in the business of risk minimization. A great plaintiffs’ lawyer’s relationship with that risk of loss is even different from that of a mediocre or bad plaintiffs’ lawyer.

In an age of listservs, webinars, and an infinite number of CLEs, elite trial skills can be obtained. But the unique relationship with the risk of losing that actually gets the important case to trial and gives society the opportunity to score the big win, may actually be innate.

“What If I Lose?” vs. “What If I Win?”

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“What if I lose?” said Emerson.

“What if you win?” I flippantly responded.

It was Saturday morning and we were on our way to the “8 & Under Regional Championship Swim Meet.” It’s a fancy name for a swim meet full of belly flops and ears sticking out of swim caps. Coffee-fueled parents sacrifice weekend rest in hopes of instilling some greater life lessons in their children through competitive swimming. Two hours of driving and 4 hours of sitting around for less than 2 minutes of actual swimming.

“What if I lose?” vs. “What if I win?” The great questions that every competitor wrestles with on the eve of competition. Regardless of whether Emerson won or lost, the hours of driving and sitting around would be worth it today. Amidst the goofy swim caps and leaky goggles, she was working through something much larger.

Alone in the car, we faced her question head on. We talked about winning and losing. We talked about how being too scared of losing can actually prevent us from winning. We talked about just going for it. We talked about how good that would feel.

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The 50-yard freestyle (2 laps) is one of Emerson’s best events right now. For little kids used to swimming only 1 lap really fast, the 2-lap race gives them their first opportunity to experiment with strategy within the context of a longer distance.

Emerson was seeded 3rd overall going into the event. There was absolutely no shot of her winning. The little girl seeded 1st had a 3-second advantage on the field. Three seconds is an eternity in competitive swimming. She was a sweet little girl that Emerson got beaten by often. She is a phenom. With a good swim, Emerson could finish in the top three and medal. That would have been really cool. It was a big meet.

The girls dove in. Emerson was making a race of it. At the turn, the girls flipped and she was at the shoulder of the phenom. Being a swimmer in a former life, I noticed that she was breathing every eight strokes. She was taking eight freestyle strokes before she took one breath.

Competitive swimmers are taught from a very young age that taking a breath slows them down. They are encouraged to take as many strokes as possible before breathing. But younger swimmers experimenting with longer distances are encouraged to take more breaths to conserve energy. Oxygen regulation is part of the strategy of competitive swimming.

I knew for a fact that Emerson’s coach had instructed her to breathe every four strokes on the 50. Despite her coach’s instructions, Emerson was breathing every eight.

Down the stretch they came. With 15 yards to go, the race was still on. Emerson was right there plowing through the water with a mighty kick.

And then, all of the sudden, she was not. With 10 yards to go, a piano dropped from the ceiling of the natatorium and landed right on my little girl’s back. The field flew past her. She finished 6th.

Most competitive swimmers and other endurance athletes have had the proverbial piano fall from the sky and land on their back. The piano is used to describe the physical sensation of having the body totally shut down in the middle of a race. The body was pushed too far. It was oxygen deprived. It was overcome by lactic acid. It takes a certain degree of courage to push it that far. It is a painful experience.

This was the first time I had seen the piano fall on Emerson. I knew why it had dropped. She tried to swim the longer distance with half as many breaths as she had trained for. Her little body just wasn’t ready yet.

After the meet we climbed in the car and headed home. I finally asked her about the race. I asked her why she had decided to breathe every eight instead of every four. Before waiting to hear her answer, I launched into a mini lecture of the importance of listening to her coach.

She waited for me to finish before simply saying: “Daddy, Ava is really fast.” She went on to give her former swimmer and plaintiffs’ lawyer daddy a lesson in strategy and just going for it.

She explained in the language of an 8-year-old how she was tired of getting whipped by Ava. She explained how she had done the math and the only way she figured she had a shot at winning was breathing less than everyone else because that would make her faster.

She gave no thought to how that strategy might have cost her a top three finish and a medal. She had gone for the win and paid the price.

Within the context of Emerson’s first little internal competitive test of self, “What if I win?” had beaten out “What if I lose?” Something pushed her past the fear of defeat, into great physical pain, in search of the almighty win.

Strategy and temperance could be taught at a later date. I added whatever it was that she explained to me in that little conversation to the long list of innate qualities in my daughter that I am tasked with simply not screwing up.

Living In The World Of “What If I Win?”

I’m not really sure what you call that innate quality that Emerson demonstrated over the weekend. In large part, because in my most honest moments with myself, I’m not really sure I possess it. My best description of the concept is living in the world of “What if I win?”

That is the definitive quality of the truly great, horrible, dangerous for corporate America’s recklessness, plaintiffs’ lawyer. The truly great ones, in a sense that maybe only plaintiffs’ lawyers truly understand and appreciate, spend the majority of their time in the world of “What if I win?” as opposed to “What if I lose?”

Most of us, especially as we get older, don’t live in that world. We become comfortable with the compromised results that are yielded by spending the majority of our time in the world of “What if I lose?”

But not the great plaintiffs’ lawyers. They overcome the fear of loss, push the important cases to trial, and live in the creative and dangerous world of “What if I win?” Within that world that most of us are too afraid to inhabit, they push society to re-evaluate how we live in relationship to each other. What is that we expect from our most powerful corporate citizens? Should we expect more?

What is that we get from the folks that dare to live in the world of “What if I win?”

I am a child of the 1980s. I remember the coolness of Joe Camel. I remember playing with candy cigarettes.

Fast-forward 30 years. I have put to bed a 5-year-old child that was crying hysterically because she caught her beloved Uncle Randy dipping snuff and thought he was going to drop dead overnight because he was using a tobacco product. The dangers of tobacco were so engrained in her by a kindergarten curriculum in public school that she thought he was going to literally die overnight.

In the reddest of states, smoking is routinely banned in both public and private establishments without any real dissent or complaints about a loss of personal liberty. That’s pretty crazy in the political climate in which we live.

And who led that fight? A bunch of plaintiffs’ lawyers that dared to live in the world of “What if I win?” They pushed past the fear of total annihilation and took the almighty tobacco industry to the mat.

Whatever you call that unique quality, it is the beautiful, dangerous, disruptive, signature quality of the plaintiffs’ lawyer.

For those that fear that quality and would have it wiped out, here is a scary thought.

It’s popping up in little girls with goofy swim caps and leaky goggles on random Saturday mornings.

Better watch out.


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.