Both Sides Now: Representing Plaintiffs and Defendants

By Mark Lanier

As mergers continue to occur throughout the Am Law 200, it’s not surprising that firms are discovering a growing number of client conflicts when approaching new litigation assignments. These firms traditionally have followed rigid business models that only allow for corporate defense work, matched with a certain hubris that inhibits many mega-firm attorneys from even considering representing a plaintiff.

What they may not realize is that traditionally plaintiff-only firms are encroaching on 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 follow 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 which law firms can effectively defend corporate clients in commercial litigation.

Corporate counsel, CEOs and boards of directors 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 multibillion-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 corporate defendant against allegations that the company had misled insurers in violation of federal law. The company obviously knew of my reputation and role in gaining large-scale jury verdicts and settlements on behalf of plaintiffs. But it was 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 client’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.

I believe this work will expand our perspectives and make us better lawyers and advocates, regardless of whom 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 enemy.

And of course, as President Lyndon Johnson once said of a dangerous rival in J. Edgar Hoover: “It’s probably better to have him inside the tent pissing out than outside the tent pissing in.”

benchMARK’S is a regular column on the 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.