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Lately I’ve found myself more and more envious of my opponents. I seem to have a string of cases that are very difficult to defend. Don’t get me wrong, I feel that accomplished Plaintiff’s lawyers work very hard and are very good at what they do. However, there is a paradox of progress in the defense bar as compared with the Plaintiff’s bar.
As a Plaintiff’s lawyer, essentially the quality of the cases is the primary consideration for success. In a sense it’s all about the facts. The traditional defense model, however, is based on volume. We don’t pick and choose individual cases we will handle. We take what those who hire us send, and we’re glad to get it.
Hence, the paradox. As a Plaintiff’s lawyer becomes more accomplished, she has a better environment for future success. The lawyer becomes more selective, and chooses better cases.
On the other hand, as the defense lawyer makes progress, she gets to defend more and more cases that the best Plaintiff’s lawyers take. If a case seems indefensible, an insurer may well assign it to the best defense lawyer they have. Thus, we get to defend the case that the best Plaintiff’s lawyer is in love with.
Recognize this for what it is. The nature of our practice is that we need to be open to taking these cases. They may not be fun to defend, but they pay the bills. With the traditional insurance relationship, I don’t think we’d be in business very long if we decided not to take cases simply because they’re difficult to defend.
As you advance as a defense lawyer, I hope you get to experience this paradox of progress. It is a badge of success. Of course, all of us like to defend cases that are easy, with good facts, and that we are likely to win. Sometimes the paradox of progress doesn’t allow that.
A couple of points to keep in mind as you progress as a defense lawyer may be helpful. First, the skills that allow you to move forward are the same skills you need to apply to these more difficult cases. Good lawyers really do make a difference, and sometimes that difference is in the form of achieving a better settlement than a lesser defense lawyer could obtain given similar facts.
Second, you need to understand your role in defending these more challenging cases. A good trial lawyer is like the manager of a baseball team. It is the job of the trial lawyer to, within the rules of our profession,
give her client the best chance for the best possible result. In baseball this means having the right pitcher on the mound for one team and the best hitter at the plate for the other team when the game is on the line. Beyond that the manager doesn’t control what happens.
Likewise, as lawyers, our ability to truly affect an outcome may be limited in a given case. Nonetheless it remains our job to marshal the facts to give our client the best chance for the best result possible. If we’ve done that, then we’ve done our job.
Finally, as you handle these more difficult cases, balance in other areas of life becomes more important. This business will consume you and spit you out if you let it. Challenging cases tend to intrude on your personal life, your thinking away from the office, and your relationship with those in your family. They tempt you to do things that you would not otherwise do in the practice of law. You need to realize that each case is just that, it’s only a case. Having lost a number difficult and hard fought cases, I can say that
one’s reputation can even be enhanced by good performance in the face of difficult circumstances. In a world where we cannot influence outcomes as much as we choose, we can influence the thoughts of our peers and opponents.
After a case a couple of years ago which was very difficult, and with a result at trial every bit as bad as we expected, an associate in my office brought me a copy of Harper Lee’s classic To Kill a Mocking Bird. On page 128, there is a quote from Atticus Finch, the small-town southern lawyer and protagonist. Atticus speaks of courage and he says of another character in the book “I wanted you to see something about her – I wanted you to see what real courage is, instead of getting the idea that courage is a man with a gun in his hand. It’s when you know you’re licked before you begin, but you begin anyway and you see it through no matter what. You rarely win, but sometimes you do. Mrs. Dubose won, all 98 lbs. of her. According to her views, she died beholden to nothing and nobody. She was the bravest person I ever knew.”
As conscientious defense lawyers who are dedicated to growing to be the best we can possibly be, we need to understand the paradox of progress. No one can lead in our industry without being subject to this paradox. If you’re sufficiently driven, you will wrestle with it. However, understand it for what it is, keep it in its proper perspective, and you can prosper even with the paradox of progress.
About the author
Tom Dukes is a board certified civil trial lawyer.
He is a former FDLA President.
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