I would rather deal with a good lawyer than a bad lawyer, even a lawyer who is more experienced or I perceive as being better than me … every single time. I don’t think have a particularly high bar in want I want from opposing counsel. In fact I can break it down into two easy categories: (1) know how to evaluate and handle your cases, and (2) don’t be a lying liar who lies. On days when I start to get greedy, I also want opposing counsel who’s easy to get along with, but I can at least be satiated if they meet the first two criteria.
Good Lawyers Know How to Evaluate and Handle Their Cases
By and large, knowing how to handle cases is not overly difficult, but it does take some experience. This isn’t to say that everyone does handle their cases appropriately. There are plenty of lawyers who, after filing suit, go dark. They refuse to respond to phone calls and emails from opposing counsel, or even their clients. They can’t be bothered to respond to discovery until a court compels them to do so. In short, they are lazy. And lazy lawyers make for bad lawyers.
Then there’s a matter of knowing how to evaluate your cases. Settlement can be hard enough as is, but when a lawyer doesn’t know what his case is worth and doesn’t know how to properly evaluate it, settlement can be all but impossible. Several years ago, I was assigned a new case. I opened the file to find that my clients were roofers who had been been re-tarring an elementary school gymnasium. Unbeknownst to them, there was a small hole in the roof that allowed some of the hot tar to slip through and down onto a student inside the gym. When I saw those facts and the plaintiff’s $200,000 demand, I thought we were in for a rough ride. Then I saw the photographs.
The photographs showed a nickel-sized injured on the plaintiff’s upper arm. I had been envisioning massive burns and scarring. This case was pending in the most conservative venue in the state. It immediately became clear that I was dealing with a lawyer who was out of his depth. He didn’t know where he was or what his case was worth. It took us a while to get the case positioned for a reasonable settlement. My opponent’s inexperience cost me time and my client money, in a way that wouldn’t have been necessary if he had known how to evaluate his case.[Note: There are many times when my opponent and I evaluate cases differently, but I know how they arrived at their evaluation. I expect that to happen. We have different goals. I am not assuming every time a plaintiff wants more for their injury than my client is willing to give that they don’t know what they’re doing.]
Lying Liars Who Lie Are Inherently Bad Lawyers
If you’ve spent any time watching the USA show Suits about a bunch of high-falutin’ BigLaw guys in New York, then you’ve seen the worst (or best?) examples of what I’m talking about here. Every relationship is adversarial and everyone is trying to get an edge over one another through deception and trickeration. You have only to look at the two protagonists to reach this conclusion: Harvey Specter is a beguiling litigator who has quickly risen to the top of the food-chain because he’s ruthless (and devilishly handsome), and Mike Ross is a genius con-man who purported himself to be a Harvard-educated lawyer. Here’s the thing about those guys: the lawyers in their own firm can’t trust them; opposing counsel can’t trust them; and frequently, their own clients can’t trust them. This sort of behavior makes for bad lawyers.
In contrast, a friend of mine recently confessed, “I was one of those crappy lawyers today.” He was working on two similar cases in which they had received settlement offers. In telling his clients about the offers, he had gotten mixed up and told Client A about Offer B and vice versa. The clients declined the offers, so my friend sent out a denial letter, explaining the basis for the denial and fired off some discovery. Opposing counsel was at a loss trying to understand the explanations that didn’t match facts of the cases.
In response, my friend could have gotten defensive and tried to cover his tracks … but that is what a crappy lawyer would have done. Instead, he sent out an apology letter right away, explaining what had happened. He also immediately informed the clients about the screw-up. The clients still rejected the offers on their respective cases. And my friend maintained his integrity by owning up to his mistake: “That’s just how I live life. I’m not going to hide things or blame other people. Always easier in life to face the consequences now, before they grow.”
In a burst of frustration, another lawyer in this conversation described bad lawyers as the ones “who misrepresent material facts – don’t consult their clients before making allegations – who file seemingly deliberately shoddy pleadings and ignore court orders and rules to try to squirrel away some kind of marginal advantage – whom an outsider might at first mistake for a pro se litigant.” Mix-ups happen. Mistakes happen. Screw-ups don’t make for bad lawyers. Lying about and covering up screw-ups makes for bad lawyers.
If on the other hand, you aspire to be a good lawyer, here are two criteria to consider: (1) do you know how to manage and evaluate your cases – and if not, are you actively pursuing improvement; and (2) can the people you regularly interact with trust you? If the answer to either of those questions is no, you’ve got some work to do. If the answer is yes, then you’ve still got to work to maintain. And sometimes maintaining a practice and reputation are harder than building it in the first place.
Photo by Hans Splinter.