Plaintiffs’ Attorneys are from Mars, Defense Attorneys are from Venus

Nina E. Kallen

The great divide between personal injury plaintiffs’ attorneys and civil defense attorney is not, as some plaintiffs’ attorneys would have you think, between those fighting the good fight and those . . . not. Nor, as people who don’t actually know any defense attorneys-- but have read articles about them-- might believe defense attorneys think, is it between those keeping the maddening hordes from knocking down the great corporate and health care institutions of our country and those helping the said maddening hordes. Rather, as I realized when I started taking on occasional contingency fee plaintiff’s case after years of doing insurance defense work, the main differences come down to passion (attorney’s versus client’s) and money (again, attorney’s versus client’s).

As an insurance defense attorney I loved the game of litigation. Find the holes in the other side’s legal theories or damage claims, pounce, and win. No holes?

Recommend settlement, and move on to more exciting pastures. And trials! I loved to go to trial. Not only did trial work make me a better attorney in every other aspect of litigation but, let’s face it, nothing was more fun. Sure, I occasionally had clients who really cared about the lawsuit, either because they actually had something at stake other than their insurer’s money, or because they were offended at being sued. But most of the time to the client the lawsuit was a mere annoyance.

On the plaintiff’s side the client carries the passion, and the attorney is the voice of caution. Plaintiffs sue because they were badly injured and it is someone else’s fault; to recover income and security they lost because of that other person; to try to make up for a life that has been changed for the worse; and certainly not least to be vindicated in a wrong committed against them. Emotions run high. Meanwhile their attorney is murmuring to them at every chance: Forget vindication, think about money. Weigh the chances of a huge verdict against the chances of losing. Juries are unpredictable. Taking a case to trial takes years.

The process of litigation is also, of course, significantly more intense for a plaintiff than for a defendant. Generally defendants have to respond to written discovery, prepare and show up for a deposition, and prepare and show up for trial. Plaintiffs have their life put under a microscope and judged.

Before I started representing plaintiffs I remember being puzzled by articles in which plaintiffs’ attorneys complained that defense attorneys would subpoena plaintiffs’ entire medical histories, even records unrelated to the injury alleged. Of course I did that. How would I know if a treatment was unrelated unless I saw the record, and probably had my medical expert analyze it as well?

I still believe that defense attorneys have a right to these records, but I understand the other side now. The individual who is suing because someone’s negligent act caused them to break their leg just does not want some attorney looking at hospital records that might include discussions of childbirth, treatment for acne or plantar’s warts, a bad case of diarrhea five years ago, and other highly personal minutia that those of us who are not plaintiffs never have to share beyond our families and physicians.

The other significant difference between contingency fee plaintiffs’ work and defense work is the money, and who is making it and who is spending it, which pervades every aspect of how a case is conducted.

In defense work volume of cases is irrelevant. You make the same amount of money whether you spend a lot of hours on a few significant cases, or a few hours on a lot of smaller cases. Status conference and you’re last on the list? Great. Easy billables.

Except for those attorneys who specialize in high value, very serious injury plaintiff’s work, money is generally made in contingency fee cases by volume. The more cases you take and collect on, the more money you make. This means that the more time you spend on any individual case, the less time you are spending on another case that might settle sooner, and the less money you are making. Status conference and you’re last on the list? Money down the drain.

As a defense attorney I loved cases that explored developing areas of law or new theories. I sought after employment law cases because, for example, the changing standards for proof of discrimination were so interesting. As a plaintiff’s attorney when a potential new client asks me to take on an “interesting” case I think . . . money down the drain.

On the other hand, while it was rare for an insurance adjuster to complain to me that I had spent too much time on a particular case, the time that I did spend, whether in discovery, dispositive motions, or trial preparation, had to be explained, justified, and at least implicitly approved ahead of time. I have never heard of a contingency fee client complaining that their lawyer is spending too much time on the case. My time is free to them.

Having looked at the law from both sides now, I know that the slurs that plaintiffs attorneys and defense attorneys sometimes fling at each other are for the most part (although admittedly not always) based on different roles. The third year insurance defense associates who seem to be conducting excessive discovery in order to harass the plaintiffs are probably just trying to defend the case appropriately, very likely without it entering their consciousness that the plaintiffs are actual human beings. The plaintiffs’ attorneys who insist on crazy settlement demands are probably kicking themselves for accepting clients who won’t list to reason.

Between the two, although justice might be taking the long route, I believe it more or less served. In the meantime, once more into the breach.

Nina Kallen is a solo practitioner in Boston. In addition to representing parties in litigation, she specializes in drafting briefs for attorneys on a subcontract basis. She can be reached at .