They say war is hell. Well, so is litigation. Things can get downright nasty in the legal trenches. Some lawyers even cross ethical lines and risk disbarment in order to win. In a recent patent infringement lawsuit between warring technology giants Qualcomm Inc. and Broadcom Corp., federal magistrate judge Barbara Major found that Qualcomm had “intentionally withheld tens of thousands of decisive documents from its opponent in an effort to win this case and gain a strategic business advantage over Broadcom” and that “Qualcomm could not have achieved this goal without some type of assistance or deliberate ignorance from its retained attorneys”. Judge Major ordered Qualcomm to pay Broadcom a whopping $8.5 million sanction. She also chastised Qualcomm’s lawyers, finding that they had “assisted Qualcomm in committing this incredible discovery violation by intentionally hiding or recklessly ignoring relevant documents, ignoring or rejecting numerous warning signs that Qualcomm’s document search was inadequate, and blindly accepting Qualcomm’s unsupported assurances that its document search was adequate. The Sanctioned Attorneys then used the lack of evidence to repeatedly and forcefully make false statements and arguments to the court and jury.” Judge Major then ordered six of Qualcomm’s lawyers to be referred to the State Bar of California for investigation of their ethical violations and possible discipline. Judge Major concluded with this choice observation: “Perhaps [this remediation process] also will establish a turning point in what the Court perceives as a decline in and deterioration of civility, professionalism and ethical conduct in the litigation arena.” That’s putting it mildly.
Then there’s this news story about Kevin Y. Jung, a prominent Bellevue, Washington lawyer who was shot in the head and critically injured while sitting in his car in his office parking lot. The shooter? His opposing counsel, William R. Joice, a former prosecutor and Air Force fighter pilot. The two had represented opposing parties in a civil lawsuit involving the fraudulent sale of a Korean store. Joice testified at his trial that he had fallen behind in the case due to his inexperience and decided upon shooting his opponent as a way of buying himself time. Joice ultimately did buy himself time. A lot of it. A Seattle, Washington judge sentenced Joice to 31 ½ years. Meanwhile, Jung’s condition deteriorated and he finally died of complications from his gunshot wound.
Finally, there is this article of unknown origin that was recently passed on by a colleague. It purports to be a defense lawyer’s guide to waging psychological warfare against plaintiff’s lawyers. I have doubts about authenticity of this article. Nevertheless, its description of the tactics employed by some lawyers rings all-too true. Read for yourself and decide. It may give you a clue of what you’re in for should you decide to file a lawsuit.
Psychological Warfare: The Best Defense to Any Plaintiff’s Claim
The warfare starts when you first hear from the Plaintiff’s attorney or a lawsuit is filed. Immediately search all public records, court records, state bar records, the internet, MySpace, Twitter and any other sources you can find, including the attorney’s website or websites for information on both the Plaintiff’s attorney (“Counsel”) or the Plaintiff. You can find a lot of good information about the attorney or client’s mood at particular times, confidence, vulnerabilities, tenacity or lack thereof or anything you can add to your arsenal. This information usually also allows you to be able to tell your client how often the Plaintiff’s attorney appeals cases and whether they are in it for the long haul, if they only take cases to trial that they are sure to win and their general approach.
Keep in mind when reviewing records of Counsel’s litigation history, that Counsel losing trials and filing a lot of appeals is never a good sign. That means Counsel does not settle cases that probably should be settled and seems to spend more time and resources than he or she should on cases that are not likely winners and likes to litigate. This type of Counsel has convinced himself or herself that they are on a righteous campaign and they are far more dangerous than those trying to simply make a living and do not believe in our litigious society. This type of lawyer is the most dangerous and can cost your client a lot of money. Be very cautious about litigating against a lawyer that regularly appeals the case following a trial loss. It is always more prudent to try to resolve the matter with these lawyers.
One of the best methods for inducing a settlement that is more beneficial to your client is to shake the confidence of the Plaintiff’s lawyer, a lot of which will reach the Plaintiff, and if done correctly, can get the lawyer to outright dismiss the case for a waiver of costs, regardless of the merits of the case. There are several approaches you can take, but using all of them in a multi-pronged attack is the most effective using the following steps:
First, build a relationship with Plaintiff’s counsel and always be very pleasant and warm at first contact. Tell them how you look forward to working with them. You may even have common interests that you are aware of from their Facebook or other social media page. You may attend the same Temple or Church for all you know, both love Pugs or a particular breed of dog or even have mutual friends. You can make the Plaintiff’s attorney believe you are an ally in justice or someone they can trust to give them straight answers or even help them in a time of need. But, you need to build the bonds through what you have in common and shared experiences. Be sure to covertly encourage Counsel to share as many experiences, feelings or interests as you can get them to and feign interest by even asking good pointed questions. Counsel will think you care and you respect them and even have an interest in who they are. No matter how irrelevant and trivial their stories are to the case you are litigating, you are building a bond that will later be used to possibly get them to dismiss the case for a waiver of costs or accept a meager settlement.
Second, after the deposition of the Plaintiff, you have had enough time to dig up what you can on both the Plaintiff and his attorney, you can talk about the case with the Counsel emphasizing as many similar cases that you can that have crashed and burned. Discuss cases in which large attorneys’ fees awards have been made against the Plaintiff. These cases are few and far between but the Plaintiff’s lawyer will not know that in many cases or whether you yourself do it often, you can even tell Counsel that you specialize in cases in which that can be done and assigned to those cases. But do not be so obvious and say that you are assigned to Counsel’s case for that reason. If you are asked, just say cases are assigned by the intake attorney and that the cases are not discussed for possible attorneys’ fees recovery until further in the litigation. However, if the Counsel seems experienced or sophisticated, do not even attempt the attorneys’ fees recovery threat because you will lose all credibility.
Tell Counsel about the high cost bills you have gotten converted to judgments against the Plaintiff. Explain that your costs are at least five figures. This is easy to do with copying, investigators, subpoenas or anything that is not done in house. Tell them that many of the Plaintiff’s you have gotten costs against, even sue Counsel out of anger and use the Plaintiff’s litigation history to support this. The Plaintiff and Counsel have no idea what costs will be allowed and cannot ask you for an itemized list. If Counsel asks how the costs could be that high, immediately, with no hesitation and in full confidence, explain that your office is very thorough and meticulous and that is a low cost number by your standards. Not only does this justify your costs, you are making the defense case insurmountable. Listen closely on the phone as you will almost be able to hear Counsel’s heart sink. All the information you use for this purpose, if you use any actual data at all, should generally be from one of your offices anywhere in the country in the event Counsel tells you that his client will dismiss if he or she sees proof of this. This happens more often than you think. The ability to produce the proof later can mean the difference between an early victory and going to trial. The Plaintiff’s attorney will have no idea if you actually worked on the case you use as the proof and will take your word for it, and the reality is, at that point, it is academic.
Now that you have whittled Counsel’s resolve, tell the Counsel that you are willing to help them get out of the mess you have convinced them that they are in with this meritless case and you will plead with your clients for a waiver of costs for a dismissal, while telling them that your clients are furious that the case was even filed, will not settle the case, want to go to trial and win the case at any expense and sue the Plaintiff and Counsel. You then become the one trying to save the Plaintiff and Counsel by mediating between them and your client.
But, be careful not to attempt to do slam the Plaintiff’s case on the facts alone if the Plaintiff’s counsel has had a lot of success on these facts based on their litigation history and especially if they have far more experience than you do with cases on these facts. This happens often with lawyers that specialize and niche Counsel. For example, a “Lemon Law” lawyer will almost always have more experience on certain fact patterns than you do. It goes without saying that Counsel that specializes is always the hardest to shake, if not impossible if you do not have helpful information gathered. On the other hand, you will have a field day with attorneys whose websites say they practice personal injury, criminal law, family law, business law, trusts and estates, immigration, DWI defense, real estate and mediation. These attorneys are taking any cases they can get and are vulnerable to a psychological attack.
It is also helpful to use this approach when you have a motion pending, usually a dispositive one that the Plaintiff’s attorney has not started working on and is dreading the thought. The motion is more effective as an incentive to settle for a waiver of costs if it is riddled with exhibits and a compendium of cases from outside the jurisdiction that the Counsel does not want to have to read. Counsel is also busy and as solo practitioners may miss dates on discovery. If a date is missed or you have any other reason to file a motion to compel before you press for a dismissal, do so. Ask for as much as you possibly can in sanctions and strike the fear in Counsel. But, always say your client or preferably the client’s in house counsel is so furious that the case was filed that he or she is the one making you do all this. You are personally against asking for sanctions and sympathize with the Plaintiff’s attorney but have no choice, but you are there to offer a lifeline by letting them out with a waiver of costs and waiving the sanctions. Regardless of the outcome of the motion, the sanctions are a drop in the bucket for your client but would financially cripple the Plaintiff and Plaintiff’s counsel, so this is a great weapon that we have and one of the most effective. It is not that hard to drum up a discovery dispute to be able to file the motion, and again, blame your client or in house counsel, you are always the good guy.
If the Plaintiff’s attorney talks about his client not settling and feeling like he or she needs to get something out of it, this is where you have to pay a little bit of money, and this is always an amount your client would gladly pay. Just make sure the amount is high enough that the Plaintiff’s attorney will get a little something out of it to make them go away or be able to cover their rent for the month, as many of them live hand to mouth. This is never more than five figures and is just a token. Explain to your client that they are merely driving by in their Bentley’s and kicking a few gold coins out of their car door as they driving by.
You can open up this attack in some cases very effectively with a meet and confer letter on a dispositive motion. Use all testimony harmful to the Plaintiff, as well as exhibits and any declarations you can get from people who detest the Plaintiff, have been sued by the Plaintiff or are even ex-spouses of the Plaintiff. Even if they are just character attacks and irrelevant declarations, the declarations will have an incredibly demoralizing impact. You may be able to find dilatants you will want to use on Facebook, Twitter and/or Court records.
Third, which is a Golden Rule or sorts, is to never paint a case as hopeless to Counsel based on Counsel’s abilities or experience. You will make Counsel resentful, angry, hurt and given Counsel something to prove. That is the last thing you want. Even if he is clueless, he can get past dispositive motions and win at trial. Many of us have been burned that way. The inexperience of lack of knowledge just means we will win the psychological war. Always find a case in the public record that Counsel was successful on. Even there is no much, pick anything. Say things like “I know you are really good because we researched you. I saw you won that opposition to a demurrer on the Jones v. Smith case. Your worked was good that I kept a copy.” Getting a copy of one successful pleading if the Plaintiff attorney has not won any trials costs almost nothing but makes Counsel truly believe you respect Counsel’s work, skills, reputations and you have no doubt about their legal acumen. Then, revert to your point about how they are taking a risk and wasting time and may as well work on their meritorious cases and put their skills to good use.
Lastly, you need to emotionally wear the Plaintiff down to have a good attack. Send subpoenas to their employers, doctors, family or anyone else you can think of. It is very embarrassing for Plaintiffs to have everyone know about their lawsuit, as many people look at litigants as opportunists and it is scary for most Plaintiffs to have all of their privacy taken away. More importantly, it is a heavy burden on the Plaintiff’s counsel to run around town trying to find out who received a subpoena and what they know and then meeting and conferring. Your fallback position is always that you have no idea what the doctor or employer or whoever you sent the subpoena to could have and therefore it could be relevant to the case.
Also send investigators to talk to all the neighbors and loved ones. Anyone hearing from an investigator makes the Plaintiff have a lot of explaining to do to that person. The Plaintiff will not want to discuss the lawsuit and if they do, it gives you more people to depose. Furthermore, many times, the Plaintiff’s explanation to their employer will just make the employer nervous about keeping them employed and the explanation to neighbors, friends and family will likely make little sense as they cannot articulate legal principles with confidence. Many lay people would say they do not understand how “you filed a legitimate lawsuit and you are being investigated.”
These strategies are effective because most Plaintiffs’ attorneys are isolated as solo practitioners or at small firms and are swamped with work that we bury them in. They do not have anyone to review the files and give them encouragement. You become the only outside voice giving an “independent” evaluation. These strategies cost very little time and money and are very effective in saving your clients millions of dollars, regardless of how solid the Plaintiff’s claim is. You dash the hope of the Plaintiff and the Counsel that you would ever settle for any substantial amount of money and your client is so angry that they will fight to the end and then come after the Plaintiff and their attorney. You can make any Plaintiff’s attorney believe that your case is not worth the hassle and their time is better spent on the multitude of other cases they have.