Civil Plaintiff Litigation. Which, Where, and How? Forum

[CanadianWolf]

Nevertheless, most litigation firms like to get paid for their work. Certain practice areas tend to engage in trials because the attorneys know that getting paid is more likely than not. For example, in the area of consumer law, the Fair Debt Collection Practices Act calls for an award of attorneys' fees for successful plaintiffs. Other areas of law encourage trials by awarding treble damages for certain harms proved at trial.

I doubt that many corporate clients encourage their attorneys to take many matters to trial due to the expense of litigation & due to the exposure to juries which can be unpredictable. In fact, many contracts now contain mandatory arbitration clauses--especially in employment agreements.

[kings84_wr]

Nevertheless, most litigation firms like to get paid for their work. Certain practice areas tend to engage in trials because the attorneys know that getting paid is more likely than not. For example, in the area of consumer law, the Fair Debt Collection Practices Act calls for an award of attorneys' fees for successful plaintiffs. Other areas of law encourage trials by awarding treble damages for certain harms proved at trial.

I doubt that many corporate clients encourage their attorneys to take many matters to trial due to the expense of litigation & due to the exposure to juries which can be unpredictable. In fact, many contracts now contain mandatory arbitration clauses--especially in employment agreements.

This is true. And you are right some practice areas do not go to trial just based on the economics of the case. The real analysis for a trial is comparing the Defendants final pre-trial offer to the possible verdict. If the case is only worth 100k on a good day and the Defendant offers 50k, than any good trial lawyer will settle.

I think on average something like 2-3% of cases go to trial. To some extent, I think some firms just don't want to go to trial. But this may also be related to Court's granting more summary judgments/motions to dismiss and mandatory ADR/mediation.

I know at my firm we hope that about 10% go to trial (but obviously its fact dependent on the Plaintiff's consent and the Defendant's offer). But it also cuts both ways because the more cases we've taken to trial (and the more verdicts we've received) the less Defendants want to risk it.

[dgroom951]

Nevertheless, most litigation firms like to get paid for their work. Certain practice areas tend to engage in trials because the attorneys know that getting paid is more likely than not. For example, in the area of consumer law, the Fair Debt Collection Practices Act calls for an award of attorneys' fees for successful plaintiffs. Other areas of law encourage trials by awarding treble damages for certain harms proved at trial.

I doubt that many corporate clients encourage their attorneys to take many matters to trial due to the expense of litigation & due to the exposure to juries which can be unpredictable. In fact, many contracts now contain mandatory arbitration clauses--especially in employment agreements.

This is true. And you are right some practice areas do not go to trial just based on the economics of the case. The real analysis for a trial is comparing the Defendants final pre-trial offer to the possible verdict. If the case is only worth 100k on a good day and the Defendant offers 50k, than any good trial lawyer will settle.

I think on average something like 2-3% of cases go to trial. To some extent, I think some firms just don't want to go to trial. But this may also be related to Court's granting more summary judgments/motions to dismiss and mandatory ADR/mediation.

I know at my firm we hope that about 10% go to trial (but obviously its fact dependent on the Plaintiff's consent and the Defendant's offer). But it also cuts both ways because the more cases we've taken to trial (and the more verdicts we've received) the less Defendants want to risk it.

I see. So, it cuts both ways. If a firm goes to trial a lot and is good, it may start settling more cases because defendants will offer more money.

Is 10% a high number, for the percentage of cases a firm intends to take to trial?

[Lexaholik]

Nevertheless, most litigation firms like to get paid for their work. Certain practice areas tend to engage in trials because the attorneys know that getting paid is more likely than not. For example, in the area of consumer law, the Fair Debt Collection Practices Act calls for an award of attorneys' fees for successful plaintiffs. Other areas of law encourage trials by awarding treble damages for certain harms proved at trial.

I doubt that many corporate clients encourage their attorneys to take many matters to trial due to the expense of litigation & due to the exposure to juries which can be unpredictable. In fact, many contracts now contain mandatory arbitration clauses--especially in employment agreements.

This is true. And you are right some practice areas do not go to trial just based on the economics of the case. The real analysis for a trial is comparing the Defendants final pre-trial offer to the possible verdict. If the case is only worth 100k on a good day and the Defendant offers 50k, than any good trial lawyer will settle.

I think on average something like 2-3% of cases go to trial. To some extent, I think some firms just don't want to go to trial. But this may also be related to Court's granting more summary judgments/motions to dismiss and mandatory ADR/mediation.

I know at my firm we hope that about 10% go to trial (but obviously its fact dependent on the Plaintiff's consent and the Defendant's offer). But it also cuts both ways because the more cases we've taken to trial (and the more verdicts we've received) the less Defendants want to risk it.

I see. So, it cuts both ways. If a firm goes to trial a lot and is good, it may start settling more cases because defendants will offer more money.

Is 10% a high number, for the percentage of cases a firm intends to take to trial?

Also be aware that economically speaking, usually it is more profitable to settle without a trial for some lesser amount than to win a larger amount at trial. However, because the threat of going to trial is important, most firms brag and engage in puffery about how often they go to trial. Don't be misled into believing that you'll be doing trials at firm X because of their posturing.

[dgroom951]

So, what is a good way to know if a firm really does tend to go to trial?

[prezidentv8]

Just to jump in, and to edit the list, most plaintiff's firms don't specialize very narrowly (for tort reform reasons and some others). But I thought I'd point out that a lot of small, general personal injury firms deal with a lot of the stuff you mentioned, i.e. (modifying your first two lists):

1) Products Liability
2) Medical Malpractice
3/4) Toxic Torts
3/4) Consumer Rights
6/7) Personal Injury

Type-of-Advocacy Rank Ordering:
1) Trial Litigation
2/3) Pretrial Litigation
4) Pretrial Investigation
5) Negotiation

TLDR: Lots of this stuff goes together. Good news for you!

[Lexaholik]

So, what is a good way to know if a firm really does tend to go to trial?

By being aware of trials that take place at the local courthouse. To some extent you can't avoid relying on reputation as a proxy, I'm just saying you have to take it with a grain of salt.

[hiima3L]

I'm not saying this to be a jerk, but: You're a 3L with median grades at a T20. Find a job first. You are not in high demand and therefore you won't have many realistic options.

[dgroom951]

I'm not saying this to be a jerk, but: You're a 3L with median grades at a T20. Find a job first. You are not in high demand and therefore you won't have many realistic options.

Well, two things. Already have a job. Second thing is that the purpose of my question is to feel out what options are realistic for me in Plaintiffs' law. I really appreciate your thoughts, especially because I am sure we are all busy.

[hiima3L]

I'm not saying this to be a jerk, but: You're a 3L with median grades at a T20. Find a job first. You are not in high demand and therefore you won't have many realistic options.

Well, two things. Already have a job. Second thing is that the purpose of my question is to feel out what options are realistic for me in Plaintiffs' law. I really appreciate your thoughts, especially because I am sure we are all busy.

Well, what is that job? This is a hugely important question because your first few years are pretty critical to how your career turns out.

Almost every single lawyer will tell you that you will have very little conscious control over the area of law you practice. Very, very few lawyers have the ability to do what they want with any meaningful control and very few decide "I want to practice X" and end up doing it.

[dgroom951]

I'm not saying this to be a jerk, but: You're a 3L with median grades at a T20. Find a job first. You are not in high demand and therefore you won't have many realistic options.

Well, two things. Already have a job. Second thing is that the purpose of my question is to feel out what options are realistic for me in Plaintiffs' law. I really appreciate your thoughts, especially because I am sure we are all busy.

Well, what is that job? This is a hugely important question because your first few years are pretty critical to how your career turns out.

Almost every single lawyer will tell you that you will have very little conscious control over the area of law you practice. Very, very few lawyers have the ability to do what they want with any meaningful control and very few decide "I want to practice X" and end up doing it.

The job I have (or will have, that is) is not sufficiently trial focused.

I think that's right, that very few lawyers feel that they had any meaningful control over the area of law in which practice. But, two things. First, I understand that, but want to go about in a rational way deciding which firms I want to apply to and how I am going to explain to those firms why I applied to them, how I discovered them, and why I want to work for them. Second, the only thing I care about is trial. Jury trials, to be exact. (And, I could say that being on the civil plaintiff side comes in at a solid second place, with nothing anywhere close in third place.) It doesn't matter to me what field it's in. So, I think Kings gave me some good advice in the last page about how to go about my search. It seems the best I can do right now is just try and find out which firms tend to go to trial more than others, all other things being equal.

[kings84_wr]

A couple points - if you want to know about trials results and dates, join the local trial lawyers list serve. That's all Plaintiff lawyers talk about. It might even be free as a law student.

Also Plaintiffs' firms are much less grade dependent in hiring. I was hired based almost entirely on my writing samples and luck.

Also while trials are a ton of fun, is it is the exact opposite for you client, particularly if it involves a really personal issue to your client (which just about every personal injury cases involves). No one wants their personal life and injuries open to the public and decided by the community. Lawyers tend to really forget just how painful trials are on their clients. So to some extent, there is a lot of value in avoiding this experience plus appellate risks and delay. For example, I've been a part of a $10 and $80 million verdict over the last two years. Both of those cases have cost us a ton of money, and there is no end in sight despite "winning."

[hiima3L]

I'm not saying this to be a jerk, but: You're a 3L with median grades at a T20. Find a job first. You are not in high demand and therefore you won't have many realistic options.

Well, two things. Already have a job. Second thing is that the purpose of my question is to feel out what options are realistic for me in Plaintiffs' law. I really appreciate your thoughts, especially because I am sure we are all busy.

Well, what is that job? This is a hugely important question because your first few years are pretty critical to how your career turns out.

Almost every single lawyer will tell you that you will have very little conscious control over the area of law you practice. Very, very few lawyers have the ability to do what they want with any meaningful control and very few decide "I want to practice X" and end up doing it.

The job I have (or will have, that is) is not sufficiently trial focused.

I think that's right, that very few lawyers feel that they had any meaningful control over the area of law in which practice. But, two things. First, I understand that, but want to go about in a rational way deciding which firms I want to apply to and how I am going to explain to those firms why I applied to them, how I discovered them, and why I want to work for them. Second, the only thing I care about is trial. Jury trials, to be exact. (And, I could say that being on the civil plaintiff side comes in at a solid second place, with nothing anywhere close in third place.) It doesn't matter to me what field it's in. So, I think Kings gave me some good advice in the last page about how to go about my search. It seems the best I can do right now is just try and find out which firms tend to go to trial more than others, all other things being equal.

I see. Well, in my very limited experience, personal injury and civil rights (police brutality, etc.) are not particularly difficult to survive MSJs, thereby going to trial, because they are so fact-intensive.

[k5220]

The job I have (or will have, that is) is not sufficiently trial focused.

I think that's right, that very few lawyers feel that they had any meaningful control over the area of law in which practice. But, two things. First, I understand that, but want to go about in a rational way deciding which firms I want to apply to and how I am going to explain to those firms why I applied to them, how I discovered them, and why I want to work for them. Second, the only thing I care about is trial. Jury trials, to be exact. (And, I could say that being on the civil plaintiff side comes in at a solid second place, with nothing anywhere close in third place.) It doesn't matter to me what field it's in. So, I think Kings gave me some good advice in the last page about how to go about my search. It seems the best I can do right now is just try and find out which firms tend to go to trial more than others, all other things being equal.

I see. Well, in my very limited experience, personal injury and civil rights (police brutality, etc.) are not particularly difficult to survive MSJs, thereby going to trial, because they are so fact-intensive.

Surviving MSJs does not mean going to trial. Because settlements.

[kings84_wr]

There are really two types of cases that generally go to trial - (1) cases with a significant jurisdictional, evidentiary, or legal issue that needs to be decided by an appellate court or (2) cases that are 50/50 on liability or damages. No one goes to trial on a slam dunk liability claim with millions in economic damages because Defendants are going to pay out. Plaintiff lawyers also don't go to trial on a MIST case with crappy liability.

[blsingindisguise]

I networked the other day with an alumni from a boutique midlaw defense firm and she explained to me how she was preparing for her first deposition. She's a third year. I was horrified. But, I have to imagine some Plaintiffs' firms--maybe some on the Hot List--offer similarly extended training periods. My guess is that there is some sort of continuum, starting at going totally solo and ending at the largest Hot List firm.

This jumped out at me so I wanted to help you manage your expectations a little: the vast majority of litigators are not going to be taking depositions in their first or second years at all, or at best in some little pro bono project. That'd be true whether you're talking p-side, d-side, big, mid or small. It's too important and complex a task to entrust to someone without experience, unless it's an exceedingly minor depo. I would say that you probably would take them a little earlier, on average, in P-side, just because cases are leanly staffed. I do know someone who got to take a depo as a second year in a fairly small firm, but overall it's not common. The vast majority of depositions I've attended have been taken by partners, with a few by upper-level associates, and even the talented mid-levels I know have usually taken relatively few.

[kings84_wr]

I networked the other day with an alumni from a boutique midlaw defense firm and she explained to me how she was preparing for her first deposition. She's a third year. I was horrified. But, I have to imagine some Plaintiffs' firms--maybe some on the Hot List--offer similarly extended training periods. My guess is that there is some sort of continuum, starting at going totally solo and ending at the largest Hot List firm.

This jumped out at me so I wanted to help you manage your expectations a little: the vast majority of litigators are not going to be taking depositions in their first or second years at all, or at best in some little pro bono project. That'd be true whether you're talking p-side, d-side, big, mid or small. It's too important and complex a task to entrust to someone without experience, unless it's an exceedingly minor depo. I would say that you probably would take them a little earlier, on average, in P-side, just because cases are leanly staffed. I do know someone who got to take a depo as a second year in a fairly small firm, but overall it's not common. The vast majority of depositions I've attended have been taken by partners, with a few by upper-level associates, and even the talented mid-levels I know have usually taken relatively few.

It really depends on the practice area too. If you are working on a anti-trust, securities, qui-tam type case, young associates are stuck doing doc review and law-motion. You won't even sniff defending a deposition (and defending plaintiff depos sucks).

But Plaintiff work in some practice areas is all about volume. I'm a third year and I've probably taken 5-10 depositions (and defended over 100), some in very very minors cases, but others in pretty complex matters. That being said, I don't think my situation is necessarily common.

[blsingindisguise]

I networked the other day with an alumni from a boutique midlaw defense firm and she explained to me how she was preparing for her first deposition. She's a third year. I was horrified. But, I have to imagine some Plaintiffs' firms--maybe some on the Hot List--offer similarly extended training periods. My guess is that there is some sort of continuum, starting at going totally solo and ending at the largest Hot List firm.

This jumped out at me so I wanted to help you manage your expectations a little: the vast majority of litigators are not going to be taking depositions in their first or second years at all, or at best in some little pro bono project. That'd be true whether you're talking p-side, d-side, big, mid or small. It's too important and complex a task to entrust to someone without experience, unless it's an exceedingly minor depo. I would say that you probably would take them a little earlier, on average, in P-side, just because cases are leanly staffed. I do know someone who got to take a depo as a second year in a fairly small firm, but overall it's not common. The vast majority of depositions I've attended have been taken by partners, with a few by upper-level associates, and even the talented mid-levels I know have usually taken relatively few.

It really depends on the practice area too. If you are working on a anti-trust, securities, qui-tam type case, young associates are stuck doing doc review and law-motion. You won't even sniff defending a deposition (and defending plaintiff depos sucks).

But Plaintiff work in some practice areas is all about volume. I'm a third year and I've probably taken 5-10 depositions (and defended over 100), some in very very minors cases, but others in pretty complex matters. That being said, I don't think my situation is necessarily common.

Fair enough. I can see how it would be different in some practice areas, especially if the underlying subject matter doesn't require special expertise and/or the case sizes are small on average. It just seemed like the poster thought it was shockingly unusual for a third year not to have taken a deposition yet, where I'd guess that, across the litigation spectrum, the opposite is true.

[dgroom951]

It just seemed like the poster thought it was shockingly unusual for a third year not to have taken a deposition yet, where I'd guess that, across the litigation spectrum, the opposite is true.

Well, I was not surprised as much as just plain horrified.

Because it is so unusual for new attorneys to take depositions or go to trial, if I find a firm that sends their new attorneys into depositions or trial, I'll know my job search is over.

[blsingindisguise]

It just seemed like the poster thought it was shockingly unusual for a third year not to have taken a deposition yet, where I'd guess that, across the litigation spectrum, the opposite is true.

Well, I was not surprised as much as just plain horrified.

Because it is so unusual for new attorneys to take depositions or go to trial, if I find a firm that sends their new attorneys into depositions or trial, I'll know my job search is over.

Well, if all you care about is doings depositions/trial and you don't care the slightest bit what the subject matter is, fine. I mean you could set up shop as a solo and start doing trials and taking depositions in your first year (assuming you're admitted) if you can actually get yourself a client. Take some crappy supermarket slip-and-fall case on a contingency basis, do everything yourself, if you're so itching to get right to depos and trials. Take a minor criminal defense case pro bono and try not to commit malpractice. You might fuck up royally and/or not make enough money to stay in business, but you'll get the immediate experience you seek.

[kings84_wr]

It just seemed like the poster thought it was shockingly unusual for a third year not to have taken a deposition yet, where I'd guess that, across the litigation spectrum, the opposite is true.

Well, I was not surprised as much as just plain horrified.

Because it is so unusual for new attorneys to take depositions or go to trial, if I find a firm that sends their new attorneys into depositions or trial, I'll know my job search is over.

Depositions really aren't as exciting as you think. Attorneys (particularly defense attorneys) prep their clients so much, you will not get any interesting info probably 75% of the time. Its really just about finding out the facts and setting up the rules of the road, so you have a bunch of good clips for trial.

[kings84_wr]

I networked the other day with an alumni from a boutique midlaw defense firm and she explained to me how she was preparing for her first deposition. She's a third year. I was horrified. But, I have to imagine some Plaintiffs' firms--maybe some on the Hot List--offer similarly extended training periods. My guess is that there is some sort of continuum, starting at going totally solo and ending at the largest Hot List firm.

This jumped out at me so I wanted to help you manage your expectations a little: the vast majority of litigators are not going to be taking depositions in their first or second years at all, or at best in some little pro bono project. That'd be true whether you're talking p-side, d-side, big, mid or small. It's too important and complex a task to entrust to someone without experience, unless it's an exceedingly minor depo. I would say that you probably would take them a little earlier, on average, in P-side, just because cases are leanly staffed. I do know someone who got to take a depo as a second year in a fairly small firm, but overall it's not common. The vast majority of depositions I've attended have been taken by partners, with a few by upper-level associates, and even the talented mid-levels I know have usually taken relatively few.

It really depends on the practice area too. If you are working on a anti-trust, securities, qui-tam type case, young associates are stuck doing doc review and law-motion. You won't even sniff defending a deposition (and defending plaintiff depos sucks).

But Plaintiff work in some practice areas is all about volume. I'm a third year and I've probably taken 5-10 depositions (and defended over 100), some in very very minors cases, but others in pretty complex matters. That being said, I don't think my situation is necessarily common.

Fair enough. I can see how it would be different in some practice areas, especially if the underlying subject matter doesn't require special expertise and/or the case sizes are small on average. It just seemed like the poster thought it was shockingly unusual for a third year not to have taken a deposition yet, where I'd guess that, across the litigation spectrum, the opposite is true.

Yeah I gotcha. And frankly most depos I attend, there is a partner on the other side, so I do think your point is pretty solid.

[prezidentv8]

my experience: small firm plaintiff's side PI work = you get to take a lot of depos real early

[dgroom951]

It just seemed like the poster thought it was shockingly unusual for a third year not to have taken a deposition yet, where I'd guess that, across the litigation spectrum, the opposite is true.

Well, I was not surprised as much as just plain horrified.

Because it is so unusual for new attorneys to take depositions or go to trial, if I find a firm that sends their new attorneys into depositions or trial, I'll know my job search is over.

Well, if all you care about is doings depositions/trial and you don't care the slightest bit what the subject matter is, fine. I mean you could set up shop as a solo and start doing trials and taking depositions in your first year (assuming you're admitted) if you can actually get yourself a client. Take some crappy supermarket slip-and-fall case on a contingency basis, do everything yourself, if you're so itching to get right to depos and trials. Take a minor criminal defense case pro bono and try not to commit malpractice. You might fuck up royally and/or not make enough money to stay in business, but you'll get the immediate experience you seek.

I am considering all of these things. But, a preexisting firm has benefits I am interested in too--mainly clients and mentors.