Stays of Execution
Friday, May 29, 2009
Let's kick this off with a small taste of humble pie and a big congratulations to 1QueensUp1, who won the Mookie after beating me heads up in the Skillz game. Through his back-to-back wins, 1QU1 effectively shut my trap hard about my 1st place May leaderboard position by smacking me down to an irrelevant 2nd place by a 20 pt margin. Thank god I didn't post the Mr. May post that would've extolled my greatness. I'll sell you the post for $5, 1QU1. It looks like I'll have to make the points in the Big Game on Sunday. Any word on whether the Sunday Brit Bloggerment is going, or whether it counts toward BBT4 points?
But the stays of execution that are really killing me are entirely unrelated to poker. Rather, they are the stays of execution I am suffering in three upcoming trials. The world of litigation, particularly personal injury litigation (which encompasses medical malpractice, products liability, construction accidents, car accidents, etc.) is a world of conflicting forces. On one side, you have plaintiff attorneys, like me, who are paid on a contingency basis. The only way my firm sees a dime is if we settle a case or successfully bring it to verdict and win for our client. Otherwise, we see nothing.
Our firm thankfully specializes in higher value cases, meaning I don't have any of the slip-and-fall or soft tissue injury (ow, my back hurts) cases. But that also means that our cases are expert-intensive, usually requiring an expert to explain to the jury what went wrong, one or more experts to explain to the jury the injury, and sometimes multiple experts to explain other aspects of the injury, like future lost wages or the cost of a life care plan. And all those experts get paid BIG money. It's probably one of the best rackets going. A testifying doctor could demand upwards of $10,000 a day for his appearance at trial. Less bold experts still demand $8,000 or so. And, they are 100% necessary. You cannot bring a medical malpractice action unless you have a doctor willing and able to testify about what the standard of care is and the deviations by the defendant doctor resulting in the plaintiff's injury. So, if every expert demands $5,000 or more, you're going to pay $5,000 or more or lose the case.
So, we have a system where my firm pays out decent money out of pocket for experts, not to mention other expenses like Court fees or fees for Court reporters, and doesn't see a dime until the case has been concluded. This is a great system because it allows lower income people to secure top notch representation (provided they shop around and have a decent case). NYC attorneys routinely charge upwards of $500/hr., so without a contingency fee arrangement, most people could not afford counsel. Plus, it keeps everyone's goals in line. The plaintiff and the plaintiff's attorney want the same thing: a speedy resolution with the best possible outcome for the plaintiff.
The conflict comes when you look at the world of defense. Now, not all defense firms work this way, but many of them do. I should know. I spent a year doing defense before I switched over to what some people idiotically call, "the Dark Side." (Side note, the woman who made that comment was the defendant against me in a child molestation case. Just to put it all together, I was representing a molested kid and I was the bad guy.)
Most defendants have insurance coverage, which chooses and pays for the defense attorney. Usually, the insurance companies have favored or contracted firms, who have agreed to significantly lower rates than the $500/hour previously quoted, because they know that a good relationship with an insurance carrier means lots of casework. So, the defense counsel's rates are a mere fraction of the plaintiff counsel's rates. The insurance company doesn't want to pay out any money on claims, and the longer they can wait the better because that money is earning interest in an account owned by the insurance company. If a defendant can put off paying $1,000,000 for a year, and the interest rate is a modest 2.5%, that insurance company has effectively earned itself $25,000. Of course, there are countervailing risks, but still, it is usually to the insurance company's benefit to delay trial and in doing so, delay paying. Meanwhile, the defense attorneys are paid hourly, unlike contingency-fee plaintiff's counsel. So, the defense attorneys are all too happy to drag a case along because every time something is adjourned, it just means another court appearance and more money in the defense firm's pocket. Attorneys in that structure are often under pressure to bill a certain amount of hours a year, either through a straightforward requirement, a bonus system, or social pressures within the firm. So, delaying the case gives them more billing hours.
In the end, the plaintiffs (and their attorneys) are trying to get through litigation as quickly as possible, as long as everything is done thoroughly; the defendants want the case to take as long as possible.
Now, with this framework, allow me to discuss the frustration of these stays of execution. It's not my execution that is being stayed. It is the litigations', or perhaps, if I am hopeful, the defendants'. I have three cases all ready for trial, two in NJ and one on Long Island, and each have been calendared for trial on at least 5 occasions...and each time, they get adjourned. There is nothing worse than anticipation turning into disappointment. And ironically, up until Wednesday of this week (the same day 1QueensUp1 broke my heart), I expected two of them to start almost simultaneously.
But guess what happened? One was a pure fluke. As we were about to start picking a jury, I received a telephone call from my expert doctor, who was to testify about what went wrong during the delivery of my infant client. It turns out that his wife is good friends with the defendant's wife. Shit! So, last minute, he decides he can no longer be our expert.
This effectively required us to delay trial. No problem, I thought. I have two other cases ready for trial in NJ. That is, I had two other trial ready to go forward. Then I got a call from one of the defendants that the Court accepted their 9th request for an adjournment because one of their experts is on vacation for the entire month of June. Fine, then. I have one case ready to go to trial, that is, until this morning, when I received an email from the same Court informing me that my one last case is adjourned as well. And this time, there was no reason given. It could've been that the Court was just too damn busy to deal with us right now.
Wah! I can't go to trial. Wah!
The pain is that each time, it's like prepping anew. If you want to do a trial right, you need to know the case cold. So, there is a lot of prep work. And even though I did most of the prep work already, I have to go over it anew each time. And there is no benefit to me, the firm or my clients. The clients don't get their money fast, the firm doesn't get paid fast, and I'm running on a legal treadmill.
Now, all I can do is focus on Sunday.
Until next time, make mine poker!
posted by Jordan @ 8:46 AM,
- At 11:34 AM, 1Queens Up1 said...
Thanks for the props, this whole May race needed a little drama anywhoo.
As far as I know I signed up for the Brit and it counts, until someone tells me otherwise.
Gl to both of us.
- At 3:52 PM, BWoP said...
Brit counts :-)
Sorry to hear about your cases. One of the most frustrating things about the job is the amount of wasted time . . . time that could be spent PLAYING POKER!
- At 6:04 PM, Dawn Summers said...
Leeemon. Second Bwop's point about wasted time. Law FTL.
- At 11:02 PM, 1Queens Up1 said...
Let me be the first to congratulate you Jordan. Absolutely deserved it after your May performance.
GL in the TOC.