Lawyers Make Formidable Litigants – Above the Law
Over my decade or so in litigation, I have seen all types of lawsuits and litigants. Indeed, I have litigated many run-of-the-mill lawsuits that were handled by the usual law firm cast of characters I am used to seeing in the courthouses in which I practice. I have also been involved with some lawsuits that involved nonlawyer pro se plaintiffs, which were extremely interesting matters to handle. However, the lawsuits for which I really like to grab the popcorn and sit back to watch the tactics and passion of the parties involved are those in which one or more litigants are lawyers themselves. Based on my experiences, lawyers make formidable litigants for a variety of reasons.
Perhaps most obviously, lawyers make daunting litigants because they know the law better than other litigants. Lawyers are usually unable to control the actions of their clients, especially before the lawyer was retained to handle a given matter. However, when lawyers are themselves litigants, they can take appropriate action both before and after a lawsuit is filed to ensure that they have the greatest chance at achieving a positive outcome.
For instance, I once had a colleague who cracked a tooth after biting into a meat pie or some other food item that contained a piece of bone. This lawyer needed to pay a pretty penny to have the tooth repaired, so he decided to sue the restaurant that sold him the meat pie. The restaurant sued the butcher and the butcher sued the meat distributor as I remember it, which created a pretty intense lawsuit over a meat pie! In any event, my former colleague knew about spoliation, a legal doctrine which holds that parties who destroy evidence can be sanctioned.
Not wanting to be accused of spoliation, this lawyer and former colleague of mine collected the rest of the meat pie that caused his broken tooth and put it in his freezer. The litigation took years to resolve, and my former colleague dutifully carried the frozen food remains to every new apartment when he changed homes. The story of him keeping his meat pie, as well as his sharp litigation techniques eventually resulted in a favorable outcome, and a nonlawyer litigant would never have considered keeping the remaining meat pie for evidentiary purposes.
Lawyers also make formidable litigants since they can sometimes avoid legal costs by performing litigation tasks themselves. When an individual or company is involved in litigation, they usually need to pay a substantial amount of money in attorneys’ fees. The amount of attorneys’ fees clients may need to pay might impact settlement decisions and other strategies that are pursued throughout litigation.
Of course, every litigant needs to pay for out-of-pocket costs like filing fees, deposition costs, and other expenses. Some lawyers who are not experienced with litigation may need to hire a seasoned litigator to handle their lawsuit. However, lawyers that are experienced with litigation can usually just handle the litigation themselves. As a result, they can continue a lawsuit without impacting their “war chest,” and that might make them less willing to settle early in order to reduce expenses.
Lawyers who represent themselves pro se are also much more likely to be passionate about litigation and ensure that every advantage is taken in a case. In the legal industry, just like in other professions, there may be inefficiencies in how lawyers dispense legal services. Some lawyers adopt a “9 to 5” approach when it is someone else’s lawsuit, and they may not devote extra energy to a representation. Moreover, law firms often have inefficiencies in how work is doled out and performed, and this can sometimes lead to misunderstandings and other negative outcomes for a representation.
However, lawyers who represent themselves are far less likely to let the “9 to 5” pace or other inefficiencies get in the way of performing their best work on a case. Indeed, people are just naturally more willing to give their all to a project if they have a vested interest in it, and lawyers who are litigants have skin in the game for litigation in which they are named. Some of the best legal work I have ever seen involved lawyers who were representing themselves, probably because they did not let budgets, billable hour caps, and other administrative hurdles get in the way of performing extraordinary work. The intangible passion that lawyers apply to their work when they are self-represented litigants cannot be underrated and is a prime reason why lawyers make formidable litigants.
In any event, I would love to hear any stories readers may have about pro se lawyers performing solid legal work in cases in which they are a named party. Lawyers have more skin in the game if they are representing themselves and this leads to some impressive, and sometimes entertaining, results.
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at email@example.com.