Garrett Coleman '25
Managing Editor
Because there is such a dearth of knowledge on the subject, the editorial board of this paper has coerced me into writing an article on plaintiff’s side litigation. This was something of an odd choice given that I am privileged and happy to have a job at a large firm specializing in defense work. But since I interned at a plaintiff’s firm this past summer and have a father who is a terrific plaintiff’s attorney in California, I am an expert in the area as far as fancy law schools go. Before you quit reading and rest easy in the comfort of your future career at Simpson Thacher, remember where your bread gets buttered—Apple will only consider paying those exorbitant fees because of the sweat and tears of the plaintiff’s bar, the men and women who, though few, take on large teams of T-14 dweebs.
The first thing to note about plaintiff’s work is the character of people who are attracted to it. These are righteous men and women willing to risk it all, with a predominantly old school bent. On nearly every car ride to lunch with the attorneys I worked for, they would mention how the named partners really cared for their clients. They were old people harmed by nearby construction, the families of minors killed in car accidents, and consumers who consistently lost money from monopolistic practices. Seeing those attorneys interact with clients, I believed in their sincerity. Even when there was no settlement to be obtained, my boss would routinely take calls from struggling people in his community looking for help. Similarly, my dad has spent the bulk of his career suing insurance companies who, in bad faith, deny benefits to their disabled insureds. Many of his clients have to live on credit cards through the litigation process. Because of this righteous cause, tensions would get high in the office. There was (some) yelling, a good amount of cursing, and plenty of aggressive walks through the halls. Good plaintiff’s lawyers are like crusaders, totally devoting themselves to a cause and willing to destroy everything in their path.
The second notable element strongly influences the culture at these firms: how they get paid. There are no billable hours, beyond estimates for calculating attorney fees when a statute allows for it. Instead, a plaintiff’s attorney worth his salt will charge on a contingency basis, meaning that he gets paid a fraction of the settlement or judgment award, usually in the range of 18 to 33 percent. This setup has certainly been good for the manufacturers of blood pressure medication. Complex cases will take years to resolve, while these entrepreneurial attorneys can do nothing but burn more time and money. This is a far cry from the constant streams of cash flow that defense firms garner.
There are, of course, some criticisms of contingency work. The first is that the payouts on large awards can dwarf what a defense attorney would have billed. Though after you calculate the expected return—factoring in the risk of dismissal—and discount it over the years of litigation, I am not sure that is true. And, more importantly, it gives anyone with a valid legal claim access to our judicial system. A more valid criticism is that contingency work functionally excludes small claims. A plaintiff’s attorney who wants to keep the lights on cannot take a tenant rights case for $5,000. That money is probably the difference between life and death for the client, but the expected payout is simply too low to justify the work. My response to this problem is that plaintiff’s work cannot be expected to remedy every societal ill, and these cases are best addressed by non-profit legal aid groups or state attorneys general acting as consumer watchdogs.
If none of this appeals to 1Ls or other students contemplating a career shift, you should also consider the experience opportunities that plaintiff’s work offers. Every young associate at the firm I worked for managed several small cases, arguing before the court along each step. We all know that this experience is more beneficial to the lawyer than being the third seat in a deposition. Plaintiff’s work offers its lawyers a trial-by-fire environment and should be attractive to anyone interested in jump-starting her career.
None of this is to say that plaintiff’s lawyers are God’s gift to man. After making fun of me for applying to Big Law firms, my former supervisor admitted that business would grind to a halt if plaintiff’s attorneys got everything they wanted. If judges did nothing more than greenlight their complaints, then this would absolutely be true. Zealous defense attorneys have an important role to play in preserving a workable economy and defending their clients. Further, there are undeniably bad incentives for the less-skilled plaintiff’s attorneys to harass defendants with untenable claims, hoping only to survive a motion to dismiss and settle. In such cases, it is the defense bar that has the better claim to a righteous cause.
But at a fancy law school like ours, the defense perspective is omnipresent. All I hope to convey is that plaintiff’s work can be exciting, morally gratifying, and lucrative. Even though I have chosen to take another route, I do so mindful of the fact that not everyone sitting on the right side in a courtroom will be a conman.
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jxu6ad@virginia.edu