“Can’t We All Just Get Along.” Civility Across the V.
The Bencher—May/June 2019
By Daniel R. Karon, Esquire and J. Philip Calabrese, Esquire
What part of our job makes us most miserable? What part makes us want to quit? Here is a hint: It has to do with lawyers.
Tell your friends that lawyers are required to take continuing-education classes not only on the law but also on alcoholism and substance abuse. Most other jobs do not require courses like ours. Add that our divorce rate is sky high and that of all jobs, lawyers rank fourth in suicide.
Law has its stressors. What job doesn’t? But what is it that uniquely qualifies our profession for heightened misery—misery to the point that lawyers who have left the practice jokingly (yet seriously) brand themselves “recovering”?
Our nonscientific thesis posits that our unhappiness comes from incivility. We believe this incivility derives from a mutual demonization, objectification, and vilification that, these days, seems baked into the art of advocacy.
Civility is a topic that we frequently discuss within ranks or at Inns of Court but never with our opposition. These discussions, therefore, tend to stoke their own fire because when a group of lawyers agrees with itself, nothing understanding or conciliatory tends to emerge.
Why are opposing lawyers so uncivil to each other? We think it stems from a shared misconnection, sowing a reciprocal misunderstanding, that leads to communal meanness.
It is not a fundamental misconception. We are all people with families and mortgages. We all work hard to send our kids to school and to perfect our vision and version of the right thing.
We instead perceive our professional misconnection and resulting incivility as centering on the previous paragraph’s last point—our vision and version of the right thing. To unpack our thesis—that lawyers do not understand or consider their opponents’ vision or version of the right thing—we looked inward. We did this because we believe much of our misconnection and incivility derives from misperceiving (or ignoring) the other side’s goals, purposes, and motivations.
To validate our theory, we crafted an experiment. We—a plaintiffs’ class-action lawyer and a class-action defense lawyer—examined ourselves. We asked what we believed our opposition thought about us and how our opposition judged us. Afterward, we presented this self-portrait to each other for assessment to see how accurate we were.
From this exercise, we hoped an understanding might emerge about what plaintiffs’ and defense lawyers think of each other. From this understanding, we hoped to draw comparisons and recognize contrasts. We hoped to reveal an understanding that would demonstrate how similar we are and why, based on these similarities, there exists no basis for the incivility that infects our profession.
How Dan Believes the Defense Bar Perceives the Plaintiffs’ Bar
I, Daniel Karon, am a class-action attorney. I believe the defense bar thinks plaintiffs’ lawyers fall into two principal camps: serious lawyers and “shakedown” lawyers.
Serious lawyers file cases such as those against VW diesel emissions, Enron, and Exxon Valdez. They are technically competent, ceaselessly committed, and creative.
Shakedown lawyers file cases such as those involving Subway footlong sandwiches, Starbucks iced coffee, and Ford truck coupons. They walk the CVS aisles looking for lawsuits concerning products whose labels, in their expert opinion, do not hold up. They file a dozen alleged food-mislabeling cases, hoping one will stick because one settlement will pay their yearly expenses.
Serious lawyers politick cases in ways that would dazzle Congress and make John Grisham wince, blithely horse-trading inventories and bargaining leadership. After all, there is a reason the bestselling novels and Hollywood blockbusters are about us. And, of course, we are all rich, only flying commercial when our private jets are down for repair.
Finally, despite serious lawyers’ acumen, we are largely, if not exclusively, profit-driven. Nevermind that our cause is existentially valid; any true purpose is pure pretext. It’s the money that drives us.
What the Real Plaintiffs’ Bar Looks Like
That is what I believe the defense bar largely thinks of my practice. Phil has read my remarks and has largely confirmed them.
Now, here is the truth. I am not a “shakedown” lawyer, so I cannot speak to how they perceive themselves or think anyone else does. I can only agree with defense counsel’s perception of them.
As for serious lawyers, only a smattering of us fit the defense bar’s stereotype. Serious lawyers are not viciously entrepreneurial, we do not place politics over plaintiffs, and we are not purely profit-driven. We are not uniformly rich, we do not all fly private, and we are not fodder for the next Grisham novel.
Instead, we put everything on the line for what we believe in. We risk our families’ comfort and security, often, these days, for the same wages we could make doing hourly work, that is, if we won. We teach, we lecture, and we write because we think our message of fairness, accountability, and responsibility is essential and worth sending.
Every morning, we dread the possibility that a bill has been proposed that will put us (and defense counsel) out of business. So we lobby Congress and testify on Capitol Hill, doing our part (typically as one witness of four) to save the ever-dwindling bucket of rights that remain for consumers, which, of course, include defense lawyers and the real people who work at corporations.
We have made a life choice not to stand idle while the next defective product kills someone or the next Ponzi scheme guts a retired couple’s savings. That is why we bristle when someone paints us with the same ugly, entrepreneurial, profit-driven brush as they do shakedown lawyers. Indeed, we work to discourage shakedown lawyers from filing cases that would advance congressional efforts to eviscerate consumers’ rights and our shared practice.
How Phil Believes the Plaintiffs’ Bar Perceives the Defense Bar
I, Phil Calabrese, defend businesses in class-action and product-liability cases. The plaintiffs’ bar thinks we defense lawyers have it easy. We have clients who pay us monthly, allowing us to have lucrative practices and extravagant (or at least comfortable) lifestyles with little risk.
We command vast resources that include legions of associates, paralegals, and secretaries, around-the-clock docket clerks and word-processing departments, and industry resources and online tools—all enshrined in lavish offices bedecked in weekly floral arrangements and rotating artwork.
According to the plaintiffs’ bar, our clients leverage these resources to mount a vigorous, but mostly frivolous, defense to generally meritorious claims. We fight for every scrap of ground—removal, standing, dismissal, Twombly, ascertainability (is that even in Rule 23?), interlocutory appeals, and more.
We have never seen an unobjectionable discovery request, we rarely produce all relevant discovery, we feign mistake when we intentionally fail to produce relevant documents, and we file endless motions, whether on discovery issues, Daubert, or summary judgment. Our game is one of delay and driving up costs, hoping to break plaintiffs’ counsel’s will and spirit and to outlast their resources.
On the merits, we know the Federal Rules of Civil Procedure better than we know our children, and we deploy these rules to distract from the real and substantial harm that our clients have done.
When it comes to taking a deposition or arguing a motion, maybe a few of us have decent stand-up skills. Even fewer of us have any meaningful trial experience. But our focus on procedure and discovery distracts from these weaknesses and the largely indefensible merits of every plaintiff’s case.
Supporting all of this are our well-heeled clients, whose wealth is only exceeded by their depth of personnel and resources available to educate us about the lawsuit’s factual and legal background that we will never disclose to the extent it damages our client’s case.
At bottom, our clients seek to make a buck by selling shoddy products, marketing deceptively, or engaging in other behavior so egregious that its illegality is obvious to anyone who is not a defense lawyer.
What the Real Defense Bar Looks Like
I have shared these perceptions with Dan, and he tells me I am right. He tells me large swaths of his bar perceive my practice largely along these lines.
Like most generalizations, this portrait has some kernels of truth, but it mostly misses the mark. The businesses we represent employ many people. These businesses and their people make positive contributions to society. They make the products we love and use every day. They build our cars, produce our food, and make our country wealthy.
They do all this at great cost, with great risk, and in the face of myriad challenges and obstacles. Often lawsuits challenge a product or practice at the core of a company’s success. This makes the case personal for the real people whose product or practice is targeted.
Do some companies engage in shady or illegal practices? Of course. But these companies—these people—are the exception. The problem is too many cases have too little merit and do little more than impose cost with little benefit to customers or society. In these circumstances, litigation feels more like legalized extortion than the administration of justice.
As for our litigiousness, the burdens of discovery are generally asymmetrical. Most plaintiffs have few, if any, worthwhile documents. Plaintiffs’ counsel often lack any idea how difficult and costly harvesting documents or identifying custodians can be, particularly in large organizations with high turnover and frequent acquisitions and where plaintiffs’ allegations span decades.
In many cases, plaintiffs’ counsel has had months or years to investigate their claims before filing suit, so it should not surprise them that defense counsel and its clients need time too. And the motions that plaintiffs’ lawyers complain about protect rights and interests important not only to defendants but also to plaintiffs. Though plaintiffs’ counsel might prefer that defendants confess judgment and pay a fee, there is nothing wrong with insisting that plaintiffs carry their burden of proof.
Every time plaintiffs’ lawyers describe the risk they face, we and our clients hear two things: First, plaintiffs’ counsel do not appreciate the risks and costs to defendants. To the contrary, we often perceive plaintiffs’ counsel as part of a calculated strategy to force settlement of a defensible claim.
Second, plaintiffs’ counsel has little appreciation for how much the economics facing law firms have changed in the past 10 years. Even meritless claims can net plaintiffs’ counsel more fees than defense counsel, to say nothing of the increased risk of fee disputes and malpractice claims that accompany unfavorable results.
The defense bar is not a band of heartless mercenaries who defend the indefensible for the right price. It is a group of thoughtful lawyers doing their jobs, protecting people and businesses who deserve it, and encouraging accountability where necessary and appropriate.
Deconstructing Our Stereotypes and Encouraging Civility
So plaintiffs’ lawyers believe defense lawyers are heartless functionaries, while defense lawyers think plaintiffs’ lawyers are opportunistic greed mongers. Is it any surprise that we are so uncivil to each other?
But we need not be this unhappy. When a case begins, pick up the phone (yes, the phone) and introduce yourself to the other side. If you are in the same city, invite your opposing counsel to lunch. If you are in different cities, arrange a drink or dinner after the next deposition or hearing. If you do any of these things, you will see how much you share in common and how ardently you want to help your clients.
Sure, our process is an adversarial one. But adversarial need not mean uncivil. Every day should invigorate us because every day carries the prospect of doing something great for our clients. If we keep in mind that we are similar people, just on different sides of the v., our profession can go a long way toward recapturing the civility—and the happiness—that once defined the art of advocacy and the practice of law.
Daniel R. Karon, Esquire is a class-action attorney with Karon LLC in Cleveland, Ohio. He chairs the American Bar Association’s National Institute on Class Actions and teaches complex litigation at Columbia Law School. He is a member of the William K. Thomas American Inn of Court. J. Philip Calabrese, Esquire is a partner at Porter Wright Morris & Arthur LLP in Cleveland, Ohio. He co-chairs the firm’s class-action, multidistrict litigation, and mass-action practice. His practice includes defending businesses in class-action and product-liability cases. He is a member of the Judge John M. Manos American Inn of Court.