Paul Luvera, The Daily Record Newswire
When’s the last time you gave real thought to the true purpose behind our advocacy for our plaintiff clients? I don’t remember what my first case was about or what the outcome was, but I remember how I felt after trial: “Wow. I’d pay someone to let me do this. To think: They pay me!”
I was so proud anyone would trust me with their problems that I wanted to do my best job for them. My focus was on my clients, and the discovery of how thrilling the trial process was surprised me.
The processes of tracking time, billing hours and collecting fees became burdensome for me.
When I first experienced the contingent-fee arrangement, I was struck by how fair it was to both client and lawyer. The arrangement made sense to me, as I had spent my summers during high school and college salmon fishing in Alaska and Puget Sound in Washington. The boat and crew would sail for Alaska in May and return mid-summer to fish the sound until fall. The crew was paid a percentage of the profit from the salmon caught and sold to the cannery.
The harder you worked, the more successful the boat, the more you made. If you didn’t do well, you didn’t get paid and could even owe money for the expenses of the boat not paid for by the catch. The captain you selected to work for and the skill of knowing how to fish, plus hard work, determined the outcome.
There’s an obvious similarity to the contingent fee arrangement. Representing injured people was an obvious choice for me half a century ago when I began the practice, because the big firms represented banks, corporations and insurance companies. Unless you wanted that practice, the obvious alternative was plaintiffs’ work, regarded by the silk-stocking firms as a tad above ambulance-chasing. Plus, big firms didn’t hire lawyers like me who went to night law school at Gonzaga.
Criminal defense work was also open, as the big firms did a small amount of white-collar work, but not the ordinary defense for the common person. Those lawyers were seen in much the same light as the personal injury lawyer.
Yet all these lawyers were and are part of the justice system and have important roles to play. The system functions right when the judge and jury are impartial and both fulfill their jobs with dedicated honesty.
The insurance defense lawyer fulfills his role when he is ethical, honest and complies fully with the rules of procedure. His first interest must be the insured client and not the fee, future work from the insurance company or its desire to win. Anything less than that is dishonorable.
The criminal defense lawyer does her job when she presents defenses that ethically challenge the government’s duty to prove guilt beyond a reasonable doubt.
This country’s greatness is dependent on how we honor the Constitution, under which the issue is not guilt or innocence, but whether the state has met its legal requirement.
The plaintiffs’ lawyer does his job when he acts in the same way as the dutiful insurance lawyer: with honesty, ethics and dedication solely to the interests of the client, not the bottom line.
When you are engaged with an unethical or obnoxious opponent, there are some basic rules to consider:
1) Remain calm, no matter what happens. When we are angry and out of control we don’t function right. We give up our power to the opponent by reacting to his cue. Gerry Spence once described this idea to me as “watchful waiting,” like the matador calmly watching the charging bull.
2) Respond only to those “attacks” that legally require a response. Otherwise, just respond verbally, if at all, with something like, “That’s interesting,” and walk away.
3) Document everything. Phone calls, conversations and every other kind of communication or exchange should be recorded. However, document with the idea that a judge will read it. No anger, no profanity, all very professional. And the less said, the better. Don’t be afraid to apply to the court for relief, but stop short of cry-baby territory. Don’t bother the judge with the inconsequential; make sure it’s big.
Our purpose as advocates involves not only dedication to our clients’ best interests, but the continuation of our justice system under the Constitution. Let’s resolve to honor our obligations fully and ethically.
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Paul N. Luvera is the founder of Luvera Law Firm in Seattle. He was elected to the American Trial Lawyers Association Hall of Fame in 2010.
