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Both Sides Now: Representing Plaintiffs and Defendants

By Mark Lanier

It’s not surprising that firms are discovering a growing number of client conflicts when approaching new litigation assignments. As mergers of large firms have occurred, those that have followed traditional, rigid business models that only allow for corporate defense work have been stymied by the conflicts that arise. Of course, many mega-firm attorneys possess a certain hubris that inhibits them from even considering representing a plaintiff.

What they may not realize is that traditionally plaintiff-only firms are encroaching into the once-exclusive club of defense practice, in part filling a void but also in response to the demands of corporate counsel who simply want the best attorney for the job. For example, in most communities, the most successful criminal defense attorneys often come from the ranks of former prosecuting district attorneys who are successful precisely because they are highly experienced at trying criminal cases. When faced with mounting a defense in a complex patent infringement claim, why not hire the lawyer and firm proven most adept at prosecuting such claims from the other side of the aisle?

While many of the old school firms rigidly hold to models that equate success with the number of billable hours, there are many rapidly evolving firms that embrace change and a new world order of legal services and the law firm-client relationships. My colleagues at supposedly plaintiff-only firms across the nation are seeing this trend unfold on a regular basis, as the lines are becoming increasingly blurred in defining what law firms can effectively defend corporate clients in commercial litigation.

Corporate counsel, CEOs and Boards are focused more than ever on results, with a reasonable fee structure, creativity, personalized attention and an aggressive mindset. They want attorneys who are comfortable in the courtroom and in the court of public opinion, recognizing that the constant news cycle of social media can affect every aspect of a business, and that “no comment” offers little protection of a company’s best interests. The attorneys who best meet these criteria likely have at least some background in representing plaintiffs.

At most successful plaintiff-focused firms, attorneys and administrators have learned to watch budgets, utilize technology, analyze litigation costs and keep staff lean. They know how to try the case while absorbing the costs, often in multi-billion-dollar litigation, while providing an equal level of legal services to the mega-firm defense team with its army of fledgling associates.

Personally, I saw this most recently in my defense of a major corporation against allegations that the company had mislead insurers into paying for drugs that violated federal quality standards. The company and its counsel obviously knew of my reputation and role in gaining large-scale jury verdicts and settlements on behalf of plaintiffs. But they were convinced that I and my firm could provide more insightful counsel and a better defense than a traditionally defense-only firm –and I was convinced that the company was right to challenge the allegations. To my mind, the eve-of-trial settlement we reached proved the company’s instincts to be correct.

This experience, and the growing number of inquiries received from corporate attorneys seeking a trial defense team, has led me to begin forming a new, dedicated team to help companies navigate all phases of the litigation process. These services include case evaluation, trial strategy, witness preparation and presentation, community attitude surveys, mock trials, and expert witness selection as well as jury selection and trial presentation. While we may or may not be called on to bring the case to trial, the services we can offer are invaluable.

Another important focus of this new venture is helping in-house legal departments communicate and evaluate potential risks in order to minimize or avoid legal liabilities. We will also offer customized education and training through CLE programs, strategic workshops, planning sessions and appearances at corporate retreats.

We expect that we’ll also see interest from both sides as we prepare for the tsunami of business interruption and bad faith insurance claims arising from the COVID-19 pandemic. Many of our attorneys have represented insurers in the past, both as in-house counsel and in private practice. Our work for plaintiffs often puts us at odds with insurers in seeking settlements as well as recoveries from significant verdicts.

This perspective makes our firm uniquely qualified to effectively manage these claims. Whether in the business interruption arena or another dispute, I believe this work will make us better lawyers and advocates, regardless of who we represent, and that progressive companies will see the value of gaining legal counsel from an unconventional if not unfamiliar source. They know the power that can come from embracing an adversary and converting vulnerabilities into strengths.

benchMARK’S is a regular column on law and life from Mark Lanier. Mr. Lanier is regarded as one of the top trial attorneys in the United States. He’s also an author, teacher, pastor and expert storyteller.