Five Steps to Being a Plaintiff Lawyer Machine

Laid off from Biglaw?  We know, it’s horrible. The profession has been turned on its head.  All that money, that schooling. All the years of suffering those hoards of social invalids and Napoleons in your firm.  And now you’re in the poor house.

Or maybe not…

You can wallow in self-pity, groveling for scraps as a “temp” slave or toiling in whatever insurance defense mill will hire you, OR you can go where the smart money’s been headed for years—Ambulance Chasing!

Sure, they won’t let you into the good country clubs, and people snicker behind your back, but really, when you’re pulling down six figures in this downturn, who gives a fuck?

Yeah, it’s true. You can make a pile of money filing those “1-800-INJURED” cases.  Fishing for hungry plaintiffs in this economy is like running around Skid Row with a pull-cart full of heroin and Thunderbird.  And this shit ain’t brain surgery either.  Even a Big Firm paper pusher like you—the kind of guy who doesn’t know a courtroom from a cloakroom—can run this practice model.

Looking to start?  Here’s a crash course.  (It differs from city to city, but the general gist of the operation is always the same):

1.  Get a Referral Source

First thing you need is business. Most people think Plaintiffs’ lawyers get their cases from the cheesy ads they run during Jerry Springer and Dr. Phil.  Untrue.  The best sources of clients are “Referral Lawyers.”

Trial lawyers go out and get cases on their own. They get them from other attorneys in exchange for a “referral fee”—or a third of the trial lawyer’s take.  If the trial lawyer nets $3 million in fees, the referral lawyer who brought him the client gets a check for what Wall Street bankers used to call “a unit.” That’s rare, of course, but if he refers enough cases to enough lawyers… well, you get the picture.

Some referrals come in from other lawyers who don’t do personal injury law or are too busy to take them. But a lot of them, the high volume cases that fund a firm’s regular cash flow, come from storefront practices in the desperate parts of town—places where saying, “I’m going to talk to my lawyer” has cachet.  Where the slightest trip on a sidewalk or slip on a banana peel is a “compensation” event.

But how do you find one of these referral sources?  That’s easy.  Scour the local bar registry and look for attorneys with addresses in the scariest parts of town—generalists with ads in three languages, claiming to handle everything from paternity claims to class actions. Invite one to lunch. If he shows up in a Lexus, you’ve got your man.  (I’d normally recommend you become a referral lawyer yourself, but if you could score business, you wouldn’t be reading this right now.)

2.  Have a Personal Injury Doctor Handy

Next thing you need is a good doctor. The first thing a Referral Lawyer does when a prospective client consults with him is make sure the person gets medical treatment to create a record.  If the client has no basis to see a true physician at a hospital or clinic, the Referral Counsel sends him to a “Personal Injury Doctor.”

A Personal Injury Doctor’s practice is part medical clinic/part litigation support company.  The doctor immediately writes a modified form report finding the client suffered a myriad of subtle and amorphous neck, back and “soft tissue” injuries from his slip-and-fall accident.  The doctor then “treats” the client and gives favorable testimony in exchange for the lawyer agreeing to pay the “medical” bills out of any recovery in the case.

The lawyer agrees because he needs the doctor to support his client’s injury claim, and the more treatment the Personal Injury Doctor provides, the greater the patient’s damages.  The lawyer can also then negotiate for a bigger settlement by arguing that the plaintiff has huge doctor bills to pay.  And this increases the lawyer’s fee, which is a percentage of the gross recovery.  And that means a perfect, symbiotic relationship.

If your Referral Source doesn’t have a good Personal Injury Doctor, find your own. Use Google Maps to locate every medical clinic within two blocks of anything with “palm reading” or “pawn shop” in the title.  In the right neck of the woods, there’s a “Dr. Nick Riviera” every four blocks.

3.  Learn the “Broad Net” Approach to Complaints

Some lawyers think the trick to writing a good complaint is laying out detailed allegations and backing them up with as many supporting exhibits as possible.  In business litigation, that’s often true.  Saying, “Here’s how you breached the contract, and the proof” early can bring some opponents to the settlement table.

Plaintiffs’ lawyers write Complaints as bare bones as possible to preserve every conceivable argument as to how and why the defendant is liable.

Plaintiff’s story:

“I tripped and fell on a can of tuna fish somebody left in Aisle 6 at SuperFresh.  My back and neck are such a mess and I can’t do anything and I had to take the last month off.  It’s sooo terrible.”

The Complaint:

“Plaintiff, as a result of the Defendant’s negligent and/or reckless failure to observe and maintain the aisles and/or store inventory or other items in such a way so that objects would not be present on the floor of said aisles and/or, upon information and belief, train employees and/or agents to observe or maintain walking areas in the store and/or implement policies to maintain or observe walkways within the store in a safe condition, was caused to fall and impact with the floor, causing her severe and substantial injuries as more fully set forth herein.”

Why the “broad net” approach?  Because claiming the plaintiff fell over a tuna fish can in Aisle 6 is too narrow a story.  Suppose the tuna fish is kept in Aisle 15?  Suppose Aisle 6 is the cooking oil, adult diapers and feminine hygiene products? You need to be able to maneuver the client’s version of the facts to react to the other side’s evidence contradicting her story. Maybe she tripped on a soup can.  Or a loose piece of molding on a display shelf. Perhaps wolves chased her from the meat aisle.

Always think “shotgun.” You never know what the hell you’ll be claiming near trial.

4.  Don’t Be Afraid to Go on a Fishing Expedition

You’re a lawyer, so you already know that the facts on which a case turns often have nothing to do with the specific event or dispute at issue in the Complaint.  An ugly admission in Discovery having little, if anything, to do with the crux of the case can force a defendant to cough up a settlement.

You know how in shareholder suits, class action firms demand sensitive and embarrassing information to push the Board of Directors toward a payout?  Well, small-time plaintiffs’ suits work the same way. Discovery often leads to a treasure trove of irrelevant ugly information that can drive the value of a lackluster or frivolous case sky high.

In the hypothetical slip-and-fall case just described, say the plaintiff’s lawyer finds that the store employee charged with cleaning the aisle at the time of the incident was fired for drinking on the job.  Now the lawyer can claim the store should have terminated that worker sooner, and the store’s failure to do so created a situation where a drunk forgot to clean the aisle, which caused the Plaintiff to fall.

Or perhaps the lawyer will catch a scared store manager in a self-serving lie, stating the aisle was inspected every hour when in reality it was only inspected twice a day.

Neither lie proves any of the plaintiff’s claims, but you can be damn sure to use them to push for a settlement—knowing the defendant fears their disclosure at trial would spell doom.

Get out your rod and tackle, and head for the deep waters.

5.  Be Prepared to Play Chicken All the Way Up to the Courthouse Stairs

After the Discovery phase is over, the parties file Motions for Summary Judgment (MSJs), arguing the court should find in their favor on admitted facts without holding a trial.  In a huge piece of business litigation, this juncture is nerve-wracking—wondering if the court will throw out some (or all) of your claims or defenses based on the wording of an agreement.

But in injury cases, you don’t have to worry about that so much.  They’re he-said/she-said disputes, which can only be decided through testimony at trial.  All you have to show is a thin hint of facts under which a jury could find in the plaintiff’s favor to get past an MSJ. The standard couldn’t be lower, and judges don’t like having their rulings publicly reversed on appeal.

The safest course for any state court is to deny the motion and allow the plaintiff to have his day in court, which is necessarily a gift to the plaintiff.

Just act like you know what you’re doing.  There’s a one-in-ten chance you might actually have to try the damn thing.

Yeah, plaintiffs’ work carries a stigma, but you’re going to have to get over your “prestige” fixation sooner or later.  What did you think?  That Big Firm of yours was going to make you an equity partner?  Hate to burst the dream, Spanky, but its time for you to get real.

Law is a trade, and a deeply devalued one for the reasonably foreseeable future.  Corporations won’t be paying what they were before, even when the economy comes back.  But Americans?  Americans will always be litigious and opportunistic. And they’ll never stop getting in fender benders, tripping on cracks or blaming their children’s ugliness or imbecility on lead paint or the Indonesian plastic used in G.I. Joe action figures.  You’ll never have a shortage of clients.

It’s hardly discussed, but it’s a well-known fact that good plaintiffs’ lawyers with solid pipelines of referrals can easily earn multiples of the average billable-hour slave’s salary.

Oh, and they rarely work weekends.  Case closed.

  • Bill Dugan

    This is pretty good advice, that is, IF you want to do Personal Injury (“PI”) law.  The only problem is, I suspect, that most of the Bitter peckerheads reading this are either BigLaw associates, or otherwise work in some form of CORPORATE law, and have no friggin’ idea how do do PI law.  Can you give us pointers on whether there is any money to be made on the SLEAZY side of Corporate law?  Isn’t there some way to make money under the table on M&A;, T&A;, Securities Offerings, and Real Estate Finance?  Let us know, as people like me and BL1Y still have a lot of tread left on our tires, and we need to make a lot of money in order to ensure us a continuing supply of hot babes.

  • BL1Y

    Bill: The way corporate law is designed, you can’t have the same huge upside of PI lawyers; but you do get a lot better security.  How many PI lawyers pull down $160k when they start?  Pretty much anything you could do with a huge upside would be securities fraud.  Even if you bring in clients to the firm, the profits get split up.  So, I think the better goal is to figure out how you can get a fat book of business and be a rainmaking partner who gets to leave early, instead of a service partner billing 3000 hours a year.

  • BL3Y

    This is hardly as interesting or informative as yesterday’s discussion.  I now have a clearer understanding why it is inadvisable some days to be “deep sea diving”.  Thanks for the heads up, Wilbur.

  • Brett

    Really Bill, PI law is pretty easy; just like the article stated.  It’s all basically Torts I stuff…duty, breach, cause, yadda yadda.  I left government prosecution to do some PI stuff with friends from work (and some DUI “defense”).  Not only do we work less hours, but we make way more money.  AND no bringing case files home over a weekend.  Granted, there is that stigma of being an ambulance chaser; but we can live with it.

  • BL1Y

    Brett: So then why are so many people still in big law?  We’re not all that bad at economics.  I doubt you really make that much money.  I think the upside is probably higher, but the big victories are few and far between.  Higher reward, but also higher risk.

  • Anonymous

    It’s probabley not that bad, like Brett says, but the only women in PI probabley look like they’ve been in an accident, not like the hot BiGLaw Pigs we have to deal with.

  • TTTrash

    @ BL1Y Re: Your question: “So then why are so many people still in big law?”
    Try this… Find two bars with a relatively similar clientele.  At the first, tell the women you meet that you make six figures as an attorney.  When they ask what kind of law you practice tell them “Business Law.” When they ask, “What does that mean?” just tell them you represent big companies in mergers and stuff.  Now go home and get laid.
    Now do the same thing at the second bar but replace “Business Law” with “Trial Lawyer.” When they ask what that means try to find a politically correct way to say “Ambulance Chaser.” Now go home and watch sports center.

    • JayGameCock

      It doesn’t matter what a woman thinks… or even what you say… all in how you say it… Attraction is not a choice… Be the Man and she will naturally fall in place… Just tell her you bludgeon new born kittens to death with the frozen remnants of aborted human foetuses =)… Remember he who cares less has already won… Plaintiff’s Attorney is the phrase I prefer.

  • Anonymous

    TTTrash, Im not sure BL1Y has it down then, because he prefers Watching Sports Center to playing Sports with a babe.

  • BL1Y

    TTTrash: Stop talking about your job and just take the girl home already.

  • Anonymous

    BL1Y, what do you mean, take the girl home already….and do what?  You corporate types need to be more specific!

  • BL1Y

    @12:24: Uh…let me talk with the West Law rep and get back to you.

  • Anonymous

    I hope youre not going to get distracted banging the Westlaw rep.  She always wanted to work in a big firm.

  • BL1Y

    Then she should have put in a little more effort today.  Getting bent over the copier hardly what I’d call “work.”

  • Anonymous

    BLY1:  I don’t understand where your comment came from.  I didn’t say anything about big law; I just said PI law was easy.  You know, since the article was about easy money in PI law rather than easy money in corporate law.  I also said I made way more money than being a prosecutor (my gov’t salary was $56,900–Maricopa County Attorney’s Office).  Right now I’m making twice what I made as a prosecutor.  I may not be rolling as large as you think you are, but I’m a lot happier than I was before.  Although, like the article said, I don’t do that many trials, which I miss.  Again, I have no idea why you attacked my comments, as it had nothing to with “what’s wrong with big firm law”

  • Brett

    BLY1: Come to think of it; if you’re comment was a question as to why are so many people still in big firm law and not moving into PI law; I don’t have an answer for you.  I was merely commenting on my own personal happiness in PI law, not everyone elses.  Damn, I forgot to put my name below.  Whoops.

  • TNlawgirl

    I’ve done corporate law, insurance defense and PI. Every type of practice has its upside, and downside.

  • demonfafa

    Wow. So you know all about being a Trial Lawyer huh? So what happens when a Pharm company puts out a drug they know can cause death. All those warnings on the commercials? That’s because ORIGINALLY the pharm companies didn’t tell anyone about the possible deaths or strokes from their drugs.
    What about when PG & E poisoned an entire town of people (seen in the movie Erin Brockovich)? Masry & Vititoe represented those people and while they certainly made a pretty penny doing it, they also got justice for hundreds of people.
    So you want to get rid of Trial Lawyers? Here’s an idea: Trial Lawyers generally don’t sue individuals – there’s very little profit in it. The concept of the “Ambulance Chaser” is quite antiquated and most Trial Lawyers have respectable offices just like any other attorney. Trial Lawyers sue companies: Pharm, Insurance, Chemical, etc. Companies that record astronomical profits for products that can often hurt or kill people. So how do you get rid of Trial Lawyers? Maybe those companies might like to putting out drugs that cause strokes? Or stop putting hexavalent chromium in the water supply. How about paying out the insurance claims that people make for necessary surgery and not cite “pre-existing” conditions as the reason? Trial Lawyers exist because you cannot rely on private industry to care about peoples’ welfare over their profits, nor on government to adequately police them.

  • Anonymous

    Was “America the Beautiful” playing in the background when you typed that speech?  I am moved.

  • Valhawk

    Demonfafa:  maybe you can explain why Wyeth was sued for application of a drug that has been around for 50 years against the written instructions, and why the suit was successful on the theory that they should have disallowed all IV treatment entirely, when they wanted to but were blocked by the FDA.
    Face it, a vast majority of PI lawyers are scumbags.

  • Brett

    So here’s a “Chicken or the Egg” question.  Are most PI lawyers scumbags because they’re enabled by a culture of sue happy individuals, or have people become obsessed with suing because PI lawyers make it so accessible?

  • Anon_0L

    Litigious society first IMO.
    IIRC no less than authority than De Tocqueville himself commented that Americans seemed to be sue-happy bastards. And he was referring to pro se cases with some backcounty hick hauling his neighbor to court over a six inch stretch of disputed territory.