Outside Counsel

 New York State recently amended its discovery rules to require much more detailed disclosure of insurance information. It is, in my view, burdensome and a pain in the ass, but that's the way it goes. I attended a virtual CLE about the new requirements put on by the New York State Trial Lawyers (plaintiffs' attorneys are "trial lawyers". Negligence defense lawyers apparently don't get to cal themselves that for some reason.) The program was good on substance, but the presenters made it clear that the new rule was something they'd lobbied hard for because, in their view, the dastardly defense bar was all the time trying to cheat in order to take the bread out of the mouths of their clients, who are widows, orphans, and hard-working salt of the earth laborers. I have no question in my mind about the sincerity of their belief. My first job out of law school was with one of the lions of the plaintiffs' bar, and he believed in his bones that insurance companies and the lawyers who work for insurance companies were all completely committed to screwing over his clients. 

This week I am attending a CLE put on by an insurance company that we do work for. The thrust of this program is that the rascally plaintiffs' bar is in cahoots to screw over defendants and the insurance companies that cover them. 

Among defense attorneys the current bête noire is something called the reptile theory of litigation. As I understand it the idea is to appeal to the emotional part of jurors' approach to the evidence at trial, particularly by suggesting that they should identify with the plaintiff in a lawsuit, and by further suggesting that the defendant in the case unreasonably violated safety norms and rules out of indifference to their client. Frankly, none of the examples that I have seen or read about impress me as anything different from what I've seen since I started out in this glamor profession, but I have no doubt that the lawyers who are howling about this are sincere in their belief that the plaintiffs' bar is full of sneaky gonifs who are just out to make a buck. I know this, because I have worked for defense lawyers who believe this in their bones.

It's all kind of exhausting, frankly. I've been trying cases for a long time, and I've seen some shit, let me tell you, but this idea that ones' adversaries are the actual enemy is not something I've ever believed, and I think it diminishes us, and belittles the system and the process that we work in.   

// posted by Bill @ 12:33 PM