Step eight in how to win a lawsuit: The proper use of interrogatories

Interrogatories are written questions that a party is required to answer under oath. You can ask pretty much anything you want, although many courts restrict the number of interrogatories. The trick here is to remember that, while your opponent is required to sign the answers under oath, it is his lawyer who actually writes out the answers. And lawyers of course are great word smiths who can almost always find evasive ways to answer difficult questions. That’s why I only use interrogatories to gather information that is purely factual: names, addresses, employers, employment history, medical expenses, income reported on tax returns, the identities of all witnesses, the types and identities of all documents that may exist on a given issue, financial information, and the like. I get everything else I need at the deposition of the opposing party where the opponent must answer everything himself and cannot rely on his lawyer to help him respond to difficult questions.

Join me next week as I take a closer look at sensationalized celebrity trials. It will be the first in a new series called Under the Microscope.

Step six in how to win a lawsuit: Depositions

A deposition is when all attorneys require an opposing party or a witness to answer questions under oath in the presence of a court reporter. It is a very formal proceeding, much like testimony in open court, except there is no judge or jury present. Attorneys use this process in order to require witnesses with critical information to commit themselves under oath before trial. This gives both sides an opportunity to plan their responses to the witnesses’ testimony and to avoid surprises at trial. This process is extremely effective in gathering evidence, but it is also very inefficient. In truth, a typical witness with relevant information that could be discovered in a 15-minute phone conversation may be subjected to 4 or 5 hours of intense questioning at a deposition. Because it is so inefficient, it is also extremely expensive. Clients must pay their lawyers to prepare for the deposition; then they must pay them to spend a day at the deposition; then they pay for the court reporter to attend the deposition and type up a lengthy transcript of the proceedings; and then they pay for the lawyers to read and analyze the transcript. It can cost anywhere from $2,000 to $10,000 for a single deposition. Really this is a hugely wasteful endeavor, but it is also an essential one under the rules of discovery in the United States.

Step five in how to win a lawsuit: Controlling your costs

Almost all lawsuits are about money, either winning the best settlement or paying the least settlement. To achieve that goal, the costs you spend litigating the case must be properly controlled – spend too little and you lose the case, spend too much and you still lose because you have not optimized the results you could have obtained. Let me give you some examples. As I mentioned in my last blog, I have defended many cases where a highly skilled and aggressive lawyer for the plaintiff has spent an enormous amount of money building the best possible case he can for his client. Then he comes to me, bragging about all the great evidence he has developed and wants to settle the case. Unfortunately, the lawyer has spent too much, more than his case is worth, so a settlement becomes impossible. Lawyers like these do not understand the meaning of the word “win,” and their clients never win, even if they get a verdict in their favor.

Lawyers representing defendants have their own set of problems. I have actually seen cases where the legal fees spent defending a case far exceed the value of the case itself. I once got a call from a disillusioned client who had received a bill from his lawyer for over $400,000 for defending him successfully on a case where the worst possible result would have required him to pay only $250,000. The lawyer actually sued him for his fee, which is how I got involved. To my astonishment, the lawyer did not even recognize he had done anything wrong. He just kept telling me it was a very complex case with difficult legal issues that required him to expend an enormous amount of time preparing the case properly. Obviously this lawyer does not understand the meaning of the word “win.” The lawyer really thought he had “won” because his client did not have to pay anything to the other side. His client, however, considered the result nothing short of a total disaster.

Step four in how to win a lawsuit: Get the case settled

The biggest mistake most lawyers make is not even trying to get the case settled before they spend a lot of money – your money – preparing the case for trial. Notice that I said “most lawyers,” and I really mean that. Most lawyers in the United States today make this mistake day in and day out, on virtually every case they handle. Lawyers are taught in law school the importance of careful, thorough preparation. They are taught how to use the Rules of Civil Procedure to force the other side to provide every detail about their case, every document that supports their case, every witness who will testify and every piece of evidence they will present in court. So lawyers do everything the rules allow them to do. And that is often very expensive and wasteful.

What I find to be truly amazing is that most lawyers do not even consider discussing settlement until they have spent a lot of money building their case. Nor, for that matter, do the clients themselves. I mostly represent defendants, and in a substantial number of the cases I see, the very first notice my clients receive about a potential claim is when some Deputy Sheriff shows up at their door and serves them with the lawsuit papers. The people bringing these lawsuits, and their lawyers, have never even taken the time to write a letter or call my clients to discuss the nature of their claim.

Why is it that Americans are so intent on running off to their lawyers to resolve all their disputes for them? And why is it that lawyers are so intent on filing a lawsuit and commencing expensive discovery? Isn’t it at least worth a try to get the case settled at the outset? So make your lawyer tells you how he intends to get your case settled and what he can do to get it settled quickly.

I’ve been involved in a lot of cases where it is practically impossible to get the case settled because my opponents have spent too much money building up their cases. If I have a case that is worth $100,000 to my client to get settled, but the other lawyer has already spent $50,000 doing discovery, it is very hard to settle that case.

Step three in how to win a lawsuit: Define what you mean by "win"

This is not a silly question. If you have nothing more than a very vague idea about what you should expect to happen with your case, you have no way to know whether you’ve won or lost, no way to make an intelligent decision about whether to settle and for how much, and no way to know whether it’s worth the gamble of taking your case to a trial in front of a jury. What is your case worth? What is the best way to bring the case to a satisfactory resolution as quickly as possible and with as few legal expenses as possible? It’s your case, not your lawyer’s case, and you need to take control of it, participate in all the important decisions about the case, participate in all decisions about the costs that will be incurred in presenting your case, and participate in all discussions about the strategy and tactics that will be used and why. The last thing to do is to trust that your lawyer will just take care of everything for you.

If you want to see what happens when clients leave everything to their lawyers and do not participate in decisions affecting their cases, try reading my novel, The Litigators, available through my publisher, Scarletta Press, or Amazon (both in paperback and digital copies). Suffice it to say that lawyers have a very different definition of what it means to win a case than clients do. If you ask a lawyer to define a “win” you are likely to hear about some grand courtroom victory. If you ask clients to define what they consider to be a “win” you will almost never hear anything about a courtroom. Lawyers are trained in the art of courtroom battles, all the rules, procedures, tactical maneuvering, and precedents they need to win their cases in court. Lawyers astonishingly have virtually no training in law school about the art of resolving disputes amicably and fairly.

Step two in how to win a lawsuit: Finding the best lawyer

Here are a few examples of what not to do when looking for the best lawyer for your case:

• Advertisements. In my last blog I advised you where not to go to find the best lawyer – advertisements. See that blog for my reasoning.
• Do not even think about hiring any attorney who contacts you. There are many unscrupulous attorneys who follow police blotters and newspaper articles and make blind calls to those victims offering to represent them. This is unethical in most states, and these people are almost always terrible lawyers.
• Internet searches. This is a very poor tool for finding a good lawyer. I tried looking for a good lawyer in Minneapolis where I have practiced law for 42 years and was unable to develop any search terms or phrases that led me to a list of top-flight attorneys in any given specialty. It appears that most of the lawyers listed have bought their way onto various lists either by paying money to do so or by using tag words in their firm’s literature that causes Google to put their names in the top ten. Occasionally I was able to find a list that did contain a few attorneys who are well respected as top-flight lawyers in their respective specialties, but even then the list did not include many names of people who were at least as good or even better. And those lists also included names of attorneys who are mediocre at best. This tool is clearly not reliable in getting you to the websites of the very best attorneys.
• Lawyers’ organizations – NBTA, ATLA ACTL, DRI, and various state and national bar associations. These are potentially good resources because these groups do have lists of excellent lawyers. Unfortunately, most of these sites do not provide directories of lawyers who are members, so these lists are not accessible to people looking for a lawyer.

Now, let’s talk about what you should do. Keep in mind that the best lawyers get their clients from referrals from two primary sources – happy clients and other lawyers. So that’s where you should start your search.

Step one in how to win a lawsuit: Choose a lawyer

The one question I am constantly asked as a lawyer is: How do I win a lawsuit? So that all of you can benefit from this answer (and also with the hope that less people will be asking it!) I am dedicating the next ten blogs to this subject. This first blog offers my perspectives on how to select a lawyer to represent you.

Perhaps the first question is whether to use a lawyer at all, since court records today indicate that a much larger group of people are choosing to represent themselves. There is an old axiom that “lawyers who represent themselves have a fool for a client.” This axiom is based on the notion that a client is too close to his case, too emotional about his case, too involved in his case to appreciate the risks in the case and fairly and responsibly assess and respond to those risks. I might also ask whether you would feel comfortable diagnosing your own medical complaints, deciding which medications were most appropriate or performing surgery on yourself. Probably not if you care much about your personal health. In fact, there is an enormous difference in the quality of lawyers in the United States. So, the question is not whether to get a lawyer but how to find the best lawyer available.

Let’s start by saying what not to do. Do not, I repeat, do not hire a lawyer based on advertising you have seen. There is absolutely no relationship between lawyers who put out enticing television ads and the level of their legal expertise. Indeed, if there is any relationship at all, it is a negative one. Why is it, one might ask, that a lawyer needs to advertise to stay busy? The vast majority of lawyers do not advertise and instead rely on word of mouth from their current and former clients to refer new clients to their attention. If these lawyers advertised as well, they’d have too much to do.

Then does this mean that lawyers who put their pictures on TV, in newspaper ads and magazine ads don’t have enough clients? But why wouldn’t they have enough clients from referrals from all the clients they have represented in the past? Especially lawyers who advertise almost incessantly...why aren’t all the clients they get from previous ads sending new clients to them? There are only two explanations for this – either they do not have enough clients because they are not very good or they just want to get you into their office and then turn your case over to some other lawyer in their office, someone who does not have enough clients on his own. Trust me on this; I have been trying lawsuits for over 42 years, and far and away the best lawyers I go up against have never advertised once in their lives.

Why clients are told to "keep quiet"

It is practically axiomatic in legal circles these days that lawyers instruct their clients to have no contact with the other side. Is this really good advice? Most lawyers take the position that their clients should not speak with anyone about the subject of the legal dispute to prevent the unwary client from sticking his foot in his mouth. This surely makes sense in a criminal matter where the potential defendant is clearly outgunned by the many years of experience of interrogating police officers and prosecutors. It may also be true where an injured claimant is contacted by a seasoned insurance adjustor who knows how to get information that will harm any future potential claim.

But it is not true for the vast majority of other civil cases that are filed, including divorces and other family matters, probate disputes, business disputes, real estate disputes, medical malpractice and a host of other claims that routinely end up in court without any conversations ever having been held between the two parties with the dispute. And why is it that this process only occurs in the United States? Are Americans that much dumber than the rest of the world where such secrecy is not the standard practice and where the parties actually try to resolve their disputes before they run off to the courthouse?

But it’s not just the lack of pre-lawsuit discussions between the parties that’s a problem; the lawyers themselves rarely discuss an early resolution. Most lawyers will tell you they don’t know enough about their cases in the early stages to advise their clients properly about a fair resolution. They need to spend lots of money doing discovery first. But is that what the clients really want? Would most clients rather have their cases resolved early on before all the money has been spent? Believe it or not, that is just not the mentality of the legal community, and, to put ultimate blame where it ought to be, it is also not the mentality of most Americans who would rather wash their hands of the dispute and turn everything over to the lawyers.

The cost of justice (part 2)

Let me ask again the same question I asked in my last blog – Is the cost of justice in the United States worth the price we pay? Here are some interesting statistics. In 1970, just after I started practicing law in Minnesota, the state’s population was 3,800,000; by 2000 it had grown to 4,900,000, a growth of 29%. During the same period the number of registered lawyers in Minnesota grew by over 400% to a total of 25,100 in 2005, which comes out to about 1 lawyer for every 200 people.

In the year 2000, over 2,000,000 lawsuits were filed in Minnesota, 700,000 alone in Minneapolis. Simply put, the citizens of Minnesota are paying 400% more for legal services today than they were just 30 years ago. Does anyone really believe that the quality of justice has improved by 400% during this time period? I would argue that in many respects, the quality of justice is far inferior today because the cost of justice is far higher. I’ll give you more information about this in a future blog, but let me make it absolutely clear – in my 42 years of trying lawsuits in Minnesota and many other states throughout the United States – the cost in absolute dollars of having a dispute heard in court has totally skyrocketed.

In 1970, a really big case would produce fees around $10,000; today virtually identical cases now routinely produce around $250,000 in fees, and many, many cases cost well over $1 million in legal fees to get resolved. And that’s only the fee on one side. Some cases have 3 or 4 parties each paying that amount in legal fees. I have been involved in many cases where the total fees paid to the attorneys involved far exceeded the amount actually paid to settle the case. How can that kind of expense possibly be justified merely to resolve a single dispute with another person?

My novel, The Litigators takes a real-life look at this issue. Look into it, you may be surprised by what you see really going on inside the legal community.

Join me next week for Is it too easy to file lawsuits in the United States?

Do lawyers ignore their clients' best interests?

Do lawyers’ fee agreements create an inevitable conflict of interest with their own clients? In 42 years of trying lawsuits I have seen just about everything. And some of the things I have seen worry me that lawyers are not doing enough to make sure that their clients’ best interests are protected. Part of the problem is that lawyers see client’s interests differently than the clients see them, a problem that I have addressed in a previous blog.

Another part of the problem is that lawyers’ fee agreements create incentives that do not necessarily benefit the clients’ real best interests. How often do lawyers working on contingency fee agreements for plaintiffs “underwork” their clients’ cases because a quick, even improvident, settlement increases their own earnings? How about lawyers working on hourly fee agreements for defendants, where their temptation is to overwork cases because an early settlement reduces their overall fees? I have seen law firms I characterize as “Litigation Mills” pushing cases through their offices like widgets on an assembly line. Their business success depends on client volume and turnover, not on maximizing any individual client’s recovery – more akin to the Walmart approach than the Nordstrom’s approach. If a case can be settled quickly, even for an amount that is less than what the client really deserves, the lawyer’s “productivity” improves, that is, his actual earnings per hour go up, while the client’s settlement goes down.

I have also seen other law firms who take the opposite approach and pursue a very aggressive strategy of demanding far more than the cases are actually worth and simply “rolling the dice” in hopes of a big verdict. These lawyers’ business success depends upon winning big every once in a while. They try cases that should be settled because of challenging liability problems to go for the big verdict that fattens their wallets and gives them nice publicity in the newspaper. It does not really matter to the lawyer if he loses 75% of his cases as long as he scores really big once in a while. Of course it does matter very much to the client, whose sole chance of success is the one case his lawyer decides to gamble away on a crapshoot.