Litigators, Plaintiffs Firms, Technology

3 Reasons For Choosing Plaintiffs' Law Over Defense Law

It's all about creativity, efficiency, and results, according to technology columnist Jeff Bennion.

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I’ve spent the bulk of my career working for the defense. I started at a 200-attorney firm doing exclusively defense work. Then, I went to an insurance defense firm where we represented businesses in a wide spectrum of cases ranging from our client rear-ending someone, to the time one of our clients mishandled a baby’s corpse, to the time our client built a defective part on a riding mower/aerator and the operator fell off of said machine and accidentally got mowed and then aerated and survived. A few years ago, I made the switch to the plaintiffs’ side and I can’t go back. It’s two different worlds. Moral reasons aside, here are three reasons why I made the switch:

1. Creativity Is Encouraged.

I like to do creative things in cases I handle, especially as we get closer to trial. I spend as much time in Photoshop as I do in Microsoft Word in the months before trial. In a recent case with an injured worker, we built a 3D model of the scene for mediation because the location of things was important. We’ve done virtual walkthroughs, video editing, and montages of contradicting statements in dangerous products cases, for example.

I’m not the only one. A few weeks ago, I attended the Consumer Attorneys of Los Angeles Annual Convention – one of the largest plaintiffs’ trial attorney organizations. One of the things I noticed was the exhibit hall (and MCLE sessions) were full of vendors and attorneys focused on artistic and creative presentations of evidence at trial. I’ve noticed in general, that when it comes to trial work, the plaintiffs’ side gets a lot more creative when it comes to how they put on their cases. When I say “creative,” I don’t mean making overreaching arguments, I mean coming up with engaging ways to tell a story to a jury. I noticed it when I was on the defense side too, that we were often under gunned when it came to tools we had in our arsenal to explain complex things to the jury, despite our big clients’ deep pockets.

It’s not just about art either. We work up our cases in other creative ways. For example, the first floor of my office has a mock trial focus group room with a viewing room and a/v hookups to watch mock juror deliberations from other rooms in the office. When we get some theory that we want to test, we run a focus group on it. That is a stark contrast to my days working for the defense when we were discouraged from having team meetings because the client or the carrier does not pay for interoffice meetings.

2. Efficiency Is Encouraged.

If I have a deposition that is not very important, I am not going to summarize it just because I need to get my 40 billable hours for the week. Our goal is to get cases out of our office, not keep cases in our office. Mundane things like Bates labeling documents and doc review are not profit centers for us, so we look to ways to do them faster and better, usually using software programs to help us automate procedures. We can focus on being lawyers as opposed to being mechanical billing units.

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3. Results Are Encouraged.

I’ve known some really good defense lawyers in my time – really personable, really smart, and really driven. They get great results for their clients and know that getting those great results will help them retain clients and find new ones. But I don’t think any of them would gamble all of the money their firm got from hours billed on a case on the decision of 12 jurors.

The first time I ever worked on a plaintiff’s case, I was still a law clerk, but I had a huge bonus waiting for me if we won. Also, on the plaintiffs’ side, you have to work with your client more because he or she is the story. Plaintiffs can make or break your case. It was probably the 15th or so trial I had participated in, but it was by far the most emotionally invested I had ever been in a case. I couldn’t believe how much of a different feeling it was. Before, I felt a certain sense of pride when I would get a good result or draft a pre-trial motion that helped our client. And when we lost, it was a sharp blow to the ego. I remember when we lost one jury trial and our client, a large insurance company, had to pay $1,000,000. It made me grumpy for about a week. On the plaintiffs’ side, the highs are much higher and the lows are much lower. Try telling a family just one time that the jury found negligence but no causation in a neonate wrongful death case. It is absolutely gut wrenching. You keep those thoughts in the back of your head as you work up the case and that’s what drives you.

Conclusion

I write a lot about technology and tools that are out there to work more efficiently and how to do a better job representing your clients, and the bottom line is they are only important if you can get to use them. If your firm pays $25 an hour for doc reviewers and bills them out at $200, then, by all means, don’t use any of my advice that I’ve mentioned before about using analytics to increase review efficiency or making your data collection process less costly. Don’t bother yourself with things like preparing animated timelines for your trial if you’ll never be able to bill for it. Meanwhile, I’ll be doing everything I need to do, everything I want to do, in the exact way I want to do it.

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Jeff Bennion is Of Counsel at Estey & Bomberger LLP, a plaintiffs’ law firm specializing in mass torts and catastrophic injuries. Although he serves on the Executive Committee for the State Bar of California’s Law Practice Management and Technology section, the thoughts and opinions in this column are his own and are not made on behalf of the State Bar of California. Follow him on Twitter here or on Facebook here, or contact him by email at [email protected].

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