Wednesday, December 6, 2006

Jeff Is Wrong: I Am Right

Posted by Alan Childress

Alternate and more accurate title, "Jeff May Be Right But Not For His Wrong Reasons:  I Am Still Right."  Bill Henderson's post proposing further research on the plaintiffs' bar (including the "elite" of the plaintiffs' bar, and stretching beyond stereotypes of what plaintiff lawyers do) struck either a chord or a nerve in lots of people and is getting blogosphere attention out there.  Jeff's reaction to it here suggests that maybe the demographic and credentialism differences Henderson is preliminarily seeing are less about the "plaintiff" client represented and more about the subject matter of practice.  In this sense he is making a very non-elitist statement that even "defense" attorneys in respected and important law firms will shake out to have similar stats as Henderson attributes to the plaintiffs' elite. 

To that extent I suspect even Henderson would say that such a proposition--not the usual stereotype of the plaintiffs' lawyers vs. their law firm insurance-defense bar opponents--is worth considering when he crunches all the numbers.  It is a factor that ought to be part of his eventual multiple regression analysis.  Further, their subject matter focus--whether on the plaintiff or defense side--ought to be sorted out as well, again as just good follow-up in the studies that Henderson is proposing.  I suspect Henderson agrees and I know I do:  that would be interesting to figure out and would have some explanatory power beyond the categorization of "plaintiff" bar.  And Henderson might find that the credential-differentiation, whatever that means and however useful that stat is--gets reduced a lot or down even to zero, when compared to more narrowly defined counterparts in "prestigious" firms.

But then Jeff proposes what he thinks would be the explanation, or part of it.  This is where, I think, his wheels start coming off.  And that seems to be that the big divider will be subject matter or focus of the trial work, because tort and employment trial practice is--I caricaturize his argument because that's what bloggers do--plugging emotional facts into an accepted legal framework that 416810_11652902_1 may require and reward various skills, but complex legal analysis is not at a priority there.  This unlike heavy duty securities fights or those contracts cases where consideration instructions are all over the place and must be deciphered and analyzed before one can even try that kind of case.  My problems with this (especially after I frame it for him that way) below the fold.

Can you guess that Jeff teaches contracts and corporate law?  (Can you also tell, less importantly because I am objective and right, that I do not?)  I am reminded of a guest speaker to our faculty one time who was talking about unauthorized practice and letting paralegals do the job for certain types of practice like wills, trusts, and uncontested divorces. Until finally, inevitably, and correctly our chaired professor who teaches wills and trusts--and the law of [seemingly uncontested but undoubtedly that is hiding something like a spouse does not know they may be entitled to half of the 401(k) in the other's name] divorce--piped up and asked just how easy does the speaker think those subjects are?  I am accusing Jeff of remembering torts through the lens of a first-year subject and bar review (a while ago, for both of us).  The reality is more than he is crediting.

Jeff chose the strawman of the negligence instruction to make his point, as if that is the paradigm of tort practice today.  I emailed him, "You don't think that even trying malpractice/products/negligence cases is more complicated than it was ten years ago--before tort reform, new immunities, weird causation rules, the R.3d, and new forms of damages--all needing special findings or at least attention by the jury?"  I don't agree that the prepackage is very useful in lots of them, especially the cases tried by a big chunk of lawyers (plaintiff and defense) who are not just glorified insurance adjusters.  To the extent some tort lawyers are pouring their wine into those familiar wineskins, they are not doing the job, especially under tort reform.  Admittedly a lot of the dynamic this changes is pre-trial and takes form as a matter of legal argument rather than the jury-trial moment Jeff uses.  But after reform of summary judgment practice, mandatory ADR, and Daubert hearings [see the very good New York Times article on that yesterday here; HT to Kris Das], the jury trial "moment" is not really the paradigm anymore either.

So his point is supported by the simplest, vaguest, most fact-intensive claim--the element of negligence--cast through the lens of litigation being about the day or two of jury trial.  I think there is a much bigger picture to this practice, even the trial aspects of it, and it is not just about applying emotional facts to an accepted legal construct.  Jeff may be right about the result and demographics, but I don't think it's because of the intricacies of contract law and practice versus the mere fact-slathering of a traffic-accident negligence case.

Put in another direction, I doubt the skills he says are premium for trial of tort and employment cases are any less essential to effective trial work in year-long antitrust cases and securities fraud defenses.  Show me the attorney in those situations who is all brain and no heart and soul, and I will show you an ineffective robot jabbering on and on about how the judge or jury is not smart enough to "get it."  I am sure Jeff agrees with this point too and would value the complex litigation lawyer or deal transactionalist who knows how to reach people and not just crunch doctrine or numbers, but I go further in not seeing the skill set as all that different for trying--even just "litigating"--different types of cases.

Finally, I don't even see the definitional distinction he seems to be drawing.  Torts cases are contracts cases.  They are corporate cases.  They involve arcane insurance clauses and law, as well as sorting out tricky business arrangements and accounting of damages.   Rare is one that does not require deciphering and analyzing all the same brainiac issues he seems to attribute to other fields.  (Same with employment law.)  We teach them separately in law school because Langdell did, but no decent tort lawyer is anything but a decent contracts lawyer. 

Jeff correctly asks Bill Henderson to look for other demographic and background trends when he completes his work.  But I don't think what Bill finds can readily be explained by the subject matter distinction Jeff's post proposes.

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