When You’re a Lawyer, Everything Looks Like an Opportunity to Argue

I recently posted about Unaccountable by Mart Makary, a book about the bad behavior of doctors. One of his points is “The when-you’re-a-hammer problem plagues modern medicine at every level.” He illustrated this with a case where transplant surgeons said an otherwise-healthy person with a small liver tumor should get a liver transplant. Which struck Makary as ridiculous.

A lawyer who reads this blog sees the same thing in lawyers. He told me the following story:

One of the sixteen defendants we sued moved to transfer the venue of our case from [Southern California city] to [Northern California city]. Both plaintiffs, all of his doctors (over a dozen), all of the witnesses (again, about a dozen), and all of locations where the incident took place are in or near [N. California city]. When we got the motion I took it to my boss who said, “Huh. We should’ve filed it in [N. California city] to begin with. I don’t know why we didn’t.” It would’ve been inconvenient for us, b/c we’re in [S. California city], but we’ve filed cases up there before, so we could handle it.
So, did we stipulate with the defendant and just transfer the case up north? No. We filed a pathetic, perfunctory opposition. We had an argument, but it was very weak: one of the defendants was located in [S. California city]. That’s basically all we had to hang our hat on.
We filed our opposition, defendant filed their reply. We all trekked down to court to argue our positions in front of the judge. The hearing should’ve taken 30 seconds — “Defendant’s motion granted.” — but the judge actually entertained oral argument. Finally, he granted the motion.
When I got back to the office, I noted to my secretary what a huge waste of time all of this was. The law was clear, virtually all of the facts were on opposing counsel’s side, we should’ve filed up north to begin with, so why fight it? Why not save everyone — us, opposing counsel, the judge and his staff — time and just agree? “Well, you gotta take a shot,” was her reply. Which is what I hear from attorneys all the time. “You gotta try, you gotta make the argument.” In other words, we have hammers so the hammers must be used no matter what.

No, it isn’t quite like a transplant surgeon who says a new liver is needed b/c of a small tumor — no one’s life or health is at risk — but how much time and resources are wasted in the legal system on bullshit like this?

5 Replies to “When You’re a Lawyer, Everything Looks Like an Opportunity to Argue”

  1. Seth,

    Don’t fall for the anecdotal evidence trap.

    Yes, these motions get filed, although I’m surprised that a plaintiff’s attorney filed it. As a practitioner, including medical malpractice claims, the waste-of-time stuff usually comes from the defense attorneys representing insurance carriers. Paid by the hour, and with virtually unlimited resources, insurance carriers (never the named the defendant but the ones who call the shots) do this sort of thing. Plaintiffs’ attorneys, at least this one, realized that the more time that they put in a on a case, the less the rate of return–if there is a return–since we work on a contingent fee basis. I wanted to get my case tried on the merits as quickly & efficiently as possible. You should know that most medical malpractice cases are unsuccessful, regardless of merit. Juries don’t like to enter verdicts against the good doctor.

    Please also note the venue of the anecdote: California. Having practiced in Iowa and Illinois, I can tell you that legal cultures, including the amount of posturing and BS, vary greatly from place to place. Chicago was a very different practice than Champaign. In Chicago-area courts & legal practices, you find a great deal more posturing & tactical use of delays & uncertainties. (And I will not even contemplate corruption of judges, who are elected in Illinois, a hideous thing.) Iowa is more sedate. In a smaller jurisdiction, you can’t afford to develop a reputation as a time-waster (think iterated prisoner’s dilemma) . Judges are busy enough. Also, judges are appointed and don’t have to solicit campaign funds, although we do have retention elections, which, until recently, were non-partisan.

    So are we perfect? No. Do some attorneys waste time & BS? Yes. But on the whole, the courts and the legal culture, at least in Iowa, tend to minimize this nonsense. And I hate it, too!

  2. Ah, no, I’ve been here before.

    I think the world of anecdotes. In my professional world they’re called cases.

    Indeed, consider the power of the anecdote, assuming for a moment its veracity (no small assumption, I understand). I single true event can negate contrary statistical suggestions of a virtually infinite data set, thereby pleasing Mr. Popper (of Vienna & London, not of the Penguins). I think that this is why the law is so very cautious about statistics, since we are most often concerned with the single incident.

    But when making public policy, anecdotes are poison. Case in point: the McDonald’s coffee case (see the documentary “Hot Coffee” if you don’t appreciate my reference), or other tales of lawyers gone wild. Here statistics should guide us in separating anomalies from trends.

    So, I’m sweet on both anecdotes & statistical generalizations.

  3. In the UK this is managed trhough the threat of a wasted costs order – if a lawyer has been unreasonable he runs the risk of paying personally. I imagine many US jurisdictions have the same.

    We’ve all come across hammer-nail abuses, but systems do adapt in some degree.

Comments are closed.