Disruptive Lawyers Aren't Always Successful

It doesn’t matter how long I’ve been a lawyer, I still worry about making a mistake.

We all fail at things occasionally. As a Disruptive Lawyer, I know that it isn’t the failure that matters; it’s the dogged fight to creatively push for a great result, whether it takes a 2nd, 3rd, or maybe even 4th attempt. The more we try to disrupt things, the more likely it is that things will actually be disrupted.

I share one of my personal great legal FAILURES below, so if you’ve failed (recently or ever), you’re definitely not alone.

It isn’t easy to be a Disruptive Lawyer, but it overall still pays great dividends for our clients, not to mention our personal satisfaction.

We’re getting ready to kick off a new Masters of Negotiation series, which is the perfect opportunity for you to become a Disruptive Lawyer or negotiator yourself. I hope to see you there.

Let’s disrupt something.

Bill

MASTERS OF NEGOTIATION

The next Masters of Negotiation Series begins April 13, 2023.

92% of all cases settle—but when?

Join me for Cruser Mitchell’s Masters of Negotiation series and come away with the skills you need to save legal fees and indemnity by creatively and efficiently resolving cases.

See upcoming webinar dates below.

April 13 — Playing Chess Instead of Checkers: A Strategic Approach to Negotiation
April 27 — Soft Skills of a Master Negotiator
May 11 — The Leverage Point of Plaintiff’s Needs
May 25 — The Leverage Point of Collectability
June 8 — The Theatre of Mediation
June 22 — Identifying the 1% that will Go to Trial as Early as Possible

The Disruptive Lawyer’s Oath: If You Don’t Succeed, Try, Try Again!

As much as we’d like to, even Disruptive Lawyers don’t always succeed.

But excellence, economy, and efficiency remain the driving force behind any Disruptive Lawyer’s litigation actions. Disruption is both strategic and intentional, even in the face of rejections from plaintiffs.

Several years ago, I was in my office when a long-time client called to say his company was being sued in a high-exposure case. The plaintiff’s car had hit a guardrail, and she was catastrophically injured, allegedly due to how the guardrail was manufactured and/or how it was installed. Hence the suit against the client, who had installed the guardrail, as well as the state Department of Transportation, and the general contractor of the road project.

My client explained that they had been a subcontractor on the project and, as such, had followed the DOT specifications in installing the guardrail. They felt that, under the law, there should be no liability. I agreed and began working on a plan to extricate them from the case. Discovery would be very expensive, with thousands of documents to be exchanged and the plaintiff’s projection of 30-40 discovery depositions, so we wanted to get out quickly. Of course, a big complication related to contractual indemnity with other defendants.

In the first 60 days of the case, I took eight steps (billing less than $10,000) to investigate and work toward voluntary dismissal.

Step 1. I had an informational “What did my client do wrong?” call with the plaintiff’s counsel. The plaintiff’s counsel claimed his expert put blame on the installer for failing to follow DOT standards. I explained why the expert was wrong and requested a dismissal.

Result: Unsuccessful

Step 2. I sent a lengthy letter to the plaintiff’s counsel explaining, with documentary evidence, that the expert was wrong and DOT standards were, in fact, followed. I also outlined that similar installations were accepted dozens of times by DOT and again requested a dismissal.

Result: Unsuccessful

Step 3. I followed up three times with the plaintiff’s counsel, who was ignoring the dismissal request.

Result: Unsuccessful

Step 4. I sent another letter, this time pushing for voluntary dismissal. In the letter, I shared a DOT study on future installation of guardrails. This study included considering and implementing the installation standard outlined by the plaintiff’s expert, which proved that the standard was not yet in effect.

Result: Unsuccessful

Step 5. I called the plaintiff’s counsel to again request a dismissal. Counsel told me that they thought my position was persuasive, but they needed to go through discovery to confirm that belief as he feared GA apportionment law and fault being apportioned to the “empty chair” if he dismissed my client.

Result: Unsuccessful

Step 6. I sent the plaintiff a frivolous litigation letter, indicating that the defendant should not have to spend $50,000 on defense costs so that the plaintiff could investigate the claim.

Result: Unsuccessful

Step 7. I offered the plaintiff a tolling on the statute of limitations in favor of a voluntary dismissal to allay any fear of the discovery of evidence making the installer culpable.

Result: Unsuccessful

Step 8. Finally, I advised my client that I was authorized to make an aggressive Offer of Judgment to force a voluntary dismissal, or the plaintiff would be exposed to attorney’s fees.

Result: Unsuccessful

Given the incident was catastrophic, the plaintiff’s counsel concluded a voluntary dismissal was not something they could sell to their client. So, yes, I failed.

The case went on for almost two years and my firm billed over $100,000 just because we were forced to go along for the ride in dozens of depositions. The case ultimately settled well into the 7 figures, but we paid under $100,000. Even so, I feel like I failed my client by not finding a way to resolve the case without billing over $100,000–and I told the client as much.

As a disruptive lawyer or someone overseeing claims such as this, what would you do? Before billing $50,000 to $100,000 to defend a case, do you attempt once or twice, or do you try four, five, six, seven, or even eight different times to push for a voluntary dismissal?

THE DISRUPTIVE LAWYER’S LITTLE RECESS

Let’s do some Tequila 101.

When I started drinking tequila, I harkened back to my college days imbibing crappy Jose Cuervo. Ugh! I then learned that tequilas, like wine and bourbon, have very divergent taste profiles depending on which region they are from in Jalisco, Mexico, as well as their aging and barrelling process.

Lowland tequilas have more earthy, peppery, and herbal tastes. They really taste like earth! Highlands tequilas have a sweeter, floral, or fruity taste. They can have hints of vanilla or caramel.

Further, the aging and barrelling process is important. There are 4 types of tequila in this regard:

1. Silver (or Blanco), which is aged for less than 2 months and is usually clear;

2. Reposado, which is aged from 2 to 12 months and usually is light to darker brown from barrelling;

3. Anejo, which is aged from 1 year to 3 years and is very dark brown; and

4. Extra Anejo, which is aged over 3 years.

There also is a great tequila called Cristalino, which is oak-aged Anejo that has been filtered with charcoal so it is clear (like Silver or Blanco). Don Julio 70 is a GREAT Cristalino. A great App for tequila brand taste and smell profiles is Tequila Matchmaker. I really love the Highland tequilas, which I will discuss further next time!

Ready to get a little disruptive?

Join me for some Disruptive Litigation Advisement.

Legally “Well Played!”

Buffalo Wild Wings has been sued in a putative class action in Chicago because “boneless wings” are not deboned chicken wings but actually breast meat. The plaintiff contends that had he known the chicken was not “wing meat,” he would not have ordered them and/or would not have paid as much for them. The main claim is false advertising. Buffalo Wild Wings responded to the lawsuit with the following Tweet:

Touche’!

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THE DISRUPTIVE LAWYER’S FUN FACT

Did you know…

The clapperboard (also known as a “slate”) that is used on film and television sets is used for a very specific purpose.

Beginning in the 1920s, clapperboards began being used to denote when a camera started recording. The clapping sound created a spike on the audiotrack, so post-production teams could determine where audio and video line up. When editors see the clapper on screen, they would match it to a spike in their audio to synchronize the two tracks.

Now you know!