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January 9, 2013

The Transition: Moving from Plaintiff to Defense

by WSBA
Imperial Rquisition
Going to the “dark side”: an attorney’s story of transitioning from plaintiff work to defense work.
Imperial Requisition

Imperial Requisition #7” by Stefan on flickr. Used under the Creative Commons BY-NC-SA 2.0 License.

One of the things I often get asked is why I made the transition from plaintiff’s work to defense work.

The answer is really complex, personal, and not a story I am likely to tell unless I know you fairly well in person. The next question, however, is one I have no problem talking about: “What is it like working on the dark side?”

In law school, they always pose the ethical question about defending someone whom you know has committed murder. My response was always the same: I may not like it, but every person is entitled to a defense under the Constitution. It’s the only way to keep a check on the police powers of the state. Insert random, generic-sounding 1L answer.

That argument doesn’t hold up as well when you’re talking the civil side of things. So, here’s the short answer: I really like what I’m doing. People I am co-counsel with, and plaintiff’s counsel who didn’t know me prior to the transition, are often surprised to learn that I was plaintiff’s counsel before this.

There were a lot of things I liked about working on the plaintiff’s side. I learned people’s stories. I was able to hold people accountable for negligence. I sometimes was able to try interesting theories. I learned a lot about a lot of different things. I loved getting in knock-down, drag-outs over discovery. I loved drafting responses to summary judgments (and the odd plaintiff’s motion for summary judgment). I loved taking depositions.

Some of the things I didn’t like? The sometimes overwhelming feeling. Marketing yourself for cases/clients. Having to bone up on a complex area in a short amount of time.

So how is that different in the transition to defense work? Well, it’s really not. The stories I tell are from a different perspective. The work is largely the same; I tend to have the same workload, which sometimes feels like it’s hard to get out from under, but is very rewarding. Really, litigation is litigation is litigation.

One thing I have noticed in the transition is this: as a plaintiff’s attorney, I saw all my cases as having merit. I tended to see the value as higher than the defense attorney, but I always strove to put the best case forward, being open and honest about the warts on my case, but moving to exclude things that were irrelevant. I thought I did a good job of screening my cases to be sure I was taking something meritorious. If I did not believe my client, I was not the attorney for him. I had to let more than one client go for unrealistic expectations.

On the defense side, not all cases are created equal. I thoroughly enjoy going up against attorneys who are well-prepared, have screened their cases, are responsive, and generally behave as I had — tough but fair. However, I see some plaintiff attorneys who are absolutely blind to blatant faking, attorneys forging or altering evidence, and everything in between (not all the time, thank goodness, or I would go insane). Those cases make me work hard to get to the truth, which generally lies somewhere in between where plaintiff and defense have staked their ground.

There are some things to get used to, reporting being the largest: my clients now want far more information than my plaintiff clients required or wanted. But that leaves me the ability to give them an honest evaluation of when I think the cases are good, when I think they’re bad, and why.

So take that for what it’s worth. From what I’ve heard, I am a bit of an outlier. Many people move from defense work to plaintiff’s work; not so much the other way around.

What do I feel each side has the ability to offer the other? From the plaintiff’s side, you gain an ability to actually see the effects of the injury on the person. This is something often left out or underdeveloped in defense depositions. The importance of knowing the stories that will be told by the lay witnesses cannot be understated, as you will have the same ability to pick those stories apart if they do not match the facts. Too often, a defense attorney will just ignore the lay witnesses, offering “no questions” at trial.

From the defense side, learn how to prepare and manage your caseload. It is too easy on the plaintiff side to get mired down in the day-to-day of your work and lose the big picture of the case’s overall goals, or tasks that need to be accomplished. One of the larger aims of reporting is to ensure all those tasks get accomplished well before trial. Now, I’m not saying you need to draft a full report on each of your cases, but you should definitely have a to-do list on each case and prioritize and revise that list often (the best plaintiff’s attorneys I know have meetings on all the cases often enough that they always know what the next step is).

The sooner we all realize our jobs are essentially the same — getting to that middle truth — the sooner we eliminate the consternation and conflagrations that often permeate our cases.

Originally published on The Amateur Law Professor

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