Choosing Litigation Counsel: Does Size Matter?

And At What Point Does Professional Civility Clash with Zealous Representation?

I have worked for a small city firm of six lawyers up to my current gig of ±500 lawyers.  In each setting, I have found myself pondering the size and civility questions.  They intersect and overlap and I don't have answers. 

The Size Issue

I don't think I would get much pushback if I posit that you have to hire a firm with the critical mass to handle the lawsuit.  This means having a sufficient number of attorneys, with sufficient skill, to address the legal issues of the lawsuit in a timely manner.  It also means either having sufficient staff to handle administrative issues or appropriate relationships with outside vendors.

There are few cases that a large firm is incapable of handling.  Economics is often the limiting factor, rather than capacity or skill. 

Having started my career with the six-lawyer firm, I do not underestimate litigators in smaller firms the way some of my BIGLAW compadres do.  Many small firm lawyers are highly skilled, were trained at top firms, and chose to work in the small firm.  

There are an awful lot of knuckleheads too.  When my adversary is from a large firm, I rarely have to explain to my client that opposing counsel was supposed to do X, and that it will not make a difference with the court anyway even if it means a further delay in our case.  

Still, I wonder whether the knuckleheads are concentrated in small firms or simply that large firms keep their knuckleheads from interacting with the outside world.   

The Civility Issue

We all agree that as professionals we litigators could be a whole lot nicer to each other.  There is no reason to run to court with a motion for sanctions because your adversary served discovery responses a day late.  There is no reason to oppose a reasonable request for an extension of time.  And there is absolutely no reason to let it get personal (even if opposing counsel is a big dumb jerk deserving of his comeuppance from me). 

But beyond this it gets sticky.  One lawyer's incivility is another's zealous representation.  The stereotype within the profession pits the small town country lawyer against the big city shark.  Justice is denied the small town client because the shark won't play fair.  The shark, on the other hand, has to cut through the clubbiness of the local bar every court date. 

Lawyers under a certain vintage go to bar events and hear about how much more pleasant it was to practice in the good old days -- the days of carbon paper and "for services rendered" bills and predominantly white male bars.  But was it really all that good?  I doubt I would have been a lawyer in the good old days.  Neither would many in my firm.

The Intersection and Overlap

Where these issues trouble me most is when I see stereotypical behavior that, in turn, affects the client's rights. 

When I worked in the small firm, and a new litigation matter came in, the partners advised to call Lawyer X and work it out.  Lawyer X was inevitably someone from the local bar, who had a certain reputation within the local bar, and maybe referred business to the firm.  It was all very civil, but was it effective?

Just calling Lawyer X was not my strength -- I was just a baby lawyer, and I am analytical and introverted by nature.  I could not imagine why Lawyer X would simply capitulate if it was not otherwise in his client's interest, and was not terribly good at schmoozing capitulation out of him on the strength of my charming personality. 

Ultimately, litigation tottered along indefinitely because no one had the wherewithal to bring it to a head.  The fees were relatively low, but cases were never resolved.

In the large firm stereotype, a new litigation matter comes in, and the immediate response is to aggressively defend no matter if a simple call to your adversary could start the wheels rolling to bring about a resolution.  In the rush to grab the advantage over your adversary, sideroads to settlement can be missed. 

Is the client's interest really served if, after 10 months of acrimonious litigation, you reach an agreement that could have been reached after two?  Not really.

I keep these pitfalls in mind whenever I evaluate new cases.  I really don't have the answer. 

Pre-Filing Prejudgment Remedies In Arbitration

Putting Some Bite Into Arbitration

Mandatory arbitration clauses are de riguer in commercial agreements:  they let you resolve your disputes privately, more quickly, and at a lower overall cost.  Where they fall short is the in terrorum effect. 

Threatening arbitration if a adversary won't fall in line just doesn't have the same bite as threatening litigation.  In fact, the larger your claim, the less bite the arbitration threat has because the fee for filing a claim in arbitration goes up with the value of your claim.

Perfect example:  you are trying to settle an LLC divorce where Member X has breached his fiduciary duty causing $500,000 in losses.  The filing fee to bring the claim with the American Arbitration Association is $6,200.  The fee to bring the same claim in New York Supreme Court is $210.  Your adversary knows that your client will part with $210 in the blink of an eye, so the threat of a lawsuit is meaningful.  But your adversary also knows that convincing your client to pay the $6,200 fee to press for a reasonable settlement is going to take some work on your part. 

Luckily, there is another way.

In New York, you can petition the Supreme Court for the entry of provisional orders in aid of arbitration before you file your claim for arbitration.  CPLR § 7502(c) lets you seek a temporary restraining order and preliminary injunction in aid of an arbitration claim, and then wait up to 30 days after the court rules on your petition before filing the claim. 

The cost for the petition is $210.  If you don't settle the case within the 30 days, then you spend the $6,200 and file the arbitration.  By then, your adversary knows you are serious and your client is ready to pay the arbitration filing fee.

P.S. on Law Latin for you new kids out there:

When a senior partner corrects your pronunciation of that dead language, a good thing to do is thank him or her, and repeat the "correct" pronunciation a few times while making a face like you are committing it to memory. 

A bad thing to do is to ask who was the emporer of Rome when he/she was growing up.