Ego is often perceived as a negative these days. However, all champions, in whatever realm they conquer, have big egos. Without it, they never would have become champions. There is a “sweet spot” between ego, humility, and hubris that can lead to greatness. The trick is knowing the difference between the three and having the personal discipline not to cross that invisible line.
A trial is a fight, similar to pugilism, ending most times in a clear-cut winner and loser. Pugilism/boxing, or the “sweet science” as it is often referred to, started to handicap prizefights to insure fairness as far back as the 19th century. There are actually 17 different classes in professional boxing defined by weight – there is no such provision for fairness or equity in the law.
Even thoroughbred horse racing attempts to handicap its races for fairness by assigning weight based on performance. A racing secretary’s goal is to attempt to handicap a race so all the participants hit the finish line at the same time.
There are inequities in trial law. Some you just can’t avoid. Competitors can have larger support staffs, deeper pockets, a better public relations machine, superior technology, and a host of other advantages. Sometimes it is just going to be David vs. Goliath, and some attorneys relish that kind of challenge. More power to them, I say!
What I am writing about today is about overstepping your knowledge and bankroll; going into uncharted territory led only by your ego or vanity.
I have witnessed plaintiff personal injury lawyers thinking they can handle product liability cases against major manufacturers that have large law firms on retainer, and provide them with the resources they need to defend or mitigate potential claims.
The difference between pursuing a personal injury claim and a product liability claim is quite significant. Manufacturers can’t afford to have their equipment deemed to be defective, and their law firms will go to extraordinary lengths to prevent this. If an expert has something bad to say about a product, and can back it up with acknowledged science, methodology and testing, the defense attorney’s job is to keep the expert from testifying to that in front of a jury. One way to prevent that is a Daubert or Frye challenge.
One of my top experts used to say that getting past a Daubert challenge was like a recipe: you needed eggs, flour, vanilla extract, milk, etc. – you get the drift. I was always amazed by how many non-product liability attorneys misinterpreted the Daubert standing. Many felt it dealt with education, background and experience, and missed the part about “accepted methodology and testing.”
As a marketing guy, I felt I also had a duty to protect my experts. Many times, this meant having a serious heart-to-heart with my clients, explaining in great detail what I expected out of them when my expert was being deposed: no reading the newspaper, staying on track with the expert and his logic string, AND if the other side laid a glove on them – rehabilitating my expert’s testimony at the first opportunity they got.
I worked for a forensic engineering firm that had a strong plaintiff automotive product liability practice. Accident recon, occupant protection, and biomechanics are the three-legged stool of advancing an automotive product liability. We had experts in them all and they were outstanding in their disciplines. Whenever meeting a new client to discuss a potential automotive product liability case against a major manufacturer, I always asked “are you prepared to spend $200,000 before these guys will even consider a settlement conference?” Many didn’t have either the resources or the chops for this; it is a wise person who can make that assessment without ego entering into the picture.
If that was the case, I would suggest attorneys to whom they could refer the case. It is truly a wise attorney who realizes that 33 percent of 40 percent of a potentially huge settlement is the way to go when undercapitalized and understaffed. Many would even participate as second chair to gain the experience for future cases. Everybody — the plaintiff, my client, and the trial attorney — WINS.
I once had a defense case that involved a serious workplace injury that came about as a result of a defect in a piece of equipment. My expert examined the equipment and determined the cause of failure was the direct result of a flawed component provided by another manufacturer. Our client third-partied that manufacturer, who had some very deep pockets, into the case. The plaintiff attorney, who had the case, was basically a workers’ comp attorney. He was not a product liability attorney and not a trial lawyer and knew his limitations. Rather than being bound by ego, he reached out to a top trial lawyer, an old law school buddy, to take the case to trial. His buddy was, and still is, a top-flight defense attorney to boot. This hastened the defendant to seek a settlement. They knew what they were up against. Once again, this subjugation of personal ego led to a win-win scenario for everybody.
I guess my point is, as Clint Eastwood used to say in the “Dirty Harry” movies, a man needs to know his limitations………….
Here’s one last thought on the topic, and I will tie it in with our theme of boxing. A long time friend and client, John Coyne, is back in Chicago practicing. John is a top-notch trial attorney who cut his teeth first as a partner at Reminger & Reminger on the defense side. In Chicago, John first worked at Belgrade & O’Donnell and then crossed the aisle to take plaintiff cases to trial for Motherway and Napleton. After a stint practicing with Molod Spitz in NYC, he’s hung up his own shingle and is practicing in Chicago. One of the unique aspects of John’s business model is that he takes plaintiff cases to trial on a consignment basis, for firms who lack trial expertise.
If your firm could potentially benefit from this arrangement, reach out to John at 312-401-1210 or email@example.com. As for the promised tie-in, in a former life John fought in the heavyweight division of the Golden Gloves and was in fact the heavyweight champion of Cleveland.
While I am plugging friends, the art work that accompanied this article on LinkedIn was courtesy of Rick Kaletsky, author of ALI AND ME: Through the Ropes. The former champ often referred to it as “The Greatest Book About Me in the World.”
For those of you who don’t know Rick, he is a long time safety consultant and former OSHA Assistant Area Director. Besides his Ali tome, Rick is the author of “OSHA Inspections: Preparation and Response,” a National Safety Council hard cover.
If you are interested in a copy of the Ali book feel free to reach out to him at firstname.lastname@example.org or call him at 203-393-1233
I’m off Tuesday morning at Zero dark hundred to Ocean Isle, NC for four days of golf and camaraderie with long time friends.
Until the next time.