I’ve faced numerous Big Law firms in my career and each has similar tactics. They will aggressively litigate, while refusing to entertain settlement discussions until they have no other choice. While most law firms attempt to amicably resolve cases and not cause unneeded motion practice, aggressive motion practice often becomes a key tenant of Big Law’s litigation strategy. While many firms attempt to reign in legal fees for their clients, the same is often absent from Big Law’s aggressive business model. Touting reputations and egos to promise clients the moon while shooting for the stars is a staple for Big Law.
But the problem with Big Law’s approach, is that when facing reasonable and capable attorneys Big Law’s overly aggressive tactics will be exposed and any frivolous motion practice will be reigned in. The Court does not have patience for unreasonable attorneys who are eager to run to the court without trying to resolve out each dispute with the other side in good faith.
When facing reasonably priced and reasonably minded attorneys, Big Law aggressive tactics just don’t get through. And Big Law’s clients pay the price. Big Law will often assign at least 3-6 associates to most cases, with top Big Law firms starting first year associates at hourly rates fast approaching $1,000 an hour. Big Law partners billing $3,000 hourly must justify these inflated rates to clients and will often have no other choice than to make overly aggressive promises to clients. These partners may get away with saying most anything over the phone in unrecorded conversations when they know their firm policy is to follow up any oral promises with lengthy written claims analyses playing devil’s advocate to technically inform clients that they could still lose the case. This system creates a personal promise of easy victory, while creating a paper trail telling clients another story. It is not uncommon for an optimistic conversation with a Big Law partner to be followed up with a lengthy claims analyses written on the client’s dime telling them the many ways that they could still lose even after paying hundreds of thousands or millions in legal fees. This system inherently undermines the weight of any statement made by a Big Law partner to a client over the phone.
For most legal disputes, clients can’t pay $50,000-100,000 a month unless they know they will promptly achieve victory. But for attorneys on the other side of the Big Law tactics who are not immediately scared off, Big Law’s promises for prompt results will soon fade away. Meanwhile, parties on the other side may be paying a fraction of Big Law’s fees and gaining a significant tactical victory simply by not retaining Big Law. When a lawsuit turns into a war of attrition, Big Law’s clients will lose this war handedly against firms offering less aggressive billing models. This is why it is pertinent for parties to choose attorneys carefully and to stay away from Big Law firms in cases where they can’t afford to fund hundred’s of thousands of dollars if not millions in legal fees if protracted litigation ensues.
While parties may often be emotional during legal disputes, it is pertinent that they carefully weigh promises made by would be attorneys and not fall victim to Big Law’s overly aggressive promises. The truth is that these promises do more than cause clients to pay more than they might need to resolve cases. When firms make overly aggressive promises without reasonably setting their client’s expectations, they delude their clients into believing that our judiciary is a pay to win system. They delude their clients into believing that the facts don’t matter and all that matters is having the most aggressive advocates. But Courts see Big Law’s tactics every day and must rule on the facts without being easily persuaded by over the top advocacy. The reality is that California courts are quite sophisticated and will see right through advocates attempting to sell them on anything less than the truth.
Courts exist to resolve only the conflicts that parties and the sharpest of advocates can’t resolve on their own. Court rulings aren’t merely tools that firms can use to get what they want. They are the opinions of the greatest minds in our legal system that aren’t easily persuaded by showmanship, ego, or experience alone. Courts look to cut through the advocacy and demand that attorneys only present arguments supported by evidence. Any attorney that believes that they can get one over on the court, will be put in their place by any reasonable advocate from the other side, if not first by a judge. Courts rule on the facts, not on the hourly rates of the attorneys presenting them. And high priced attorneys don’t just have to validate their rates to their clients, but the court. Attorneys with any self-doubt as to their worth, will be quickly humbled and exposed. Attorneys attempting to get one over the court will lose all credibility and face the threat of sanctions.
High stakes disputes aren’t always about hiring the biggest, baddest attorneys. High stakes disputes must be carefully evaluated from a client perspective. One of the most important decisions a company facing a dispute makes is hiring the right attorneys for the job. When hiring attorneys, clients should weigh concerns like attorney competency, potential legal fees, and whether the attorney is someone the client can connect with a level sufficient to build the high degree of trust needed in attorney-client relationships. Clients should be turned off immediately from attorneys that try to invoke the emotion of the client or add fuel to the fire. Instead, trustworthy attorneys give clients the best advice they can based only on the facts in their knowledge, ask questions when they don’t know something, and clearly explain what they will be doing to help. Relationships are about trust. Trust is earned and clients must be sure not to fall victim to over the top promises.
Don’t be deceived by over the top attorney salesmanship. Don’t pay over the top rates. Don’t be fooled into thinking that aggressive litigation will go unchecked. The truth will always be revealed in our adversarial litigation system. You need a trusted advocate, not an overly aggressive business model.
When facing the most complex disputes of your life, you need an attorney that you trust.