One Trial, One Lawyer: the Virtues of Singularity

By Eugene Z. DuBose
http://www.ezlaw.org
Reprinted from THE PRACTICAL LITIGATOR
Volume 6, Number 6

I have been practicing alone and trying lawsuits alone since 1982. Of late, it has begun to appear more and more convincingly to me that this is the best way to try a lawsuit. Having discovered that there were good reasons for what I was doing, I have attempted in a mildly organized fashion to put some of those reasons on paper.

  1. No lawsuit is too big for a sole practitioner.

    Some years ago, I worked in a large New York law firm and was assigned to a huge case involving the implosion of the boiler of a nuclear power plant: the vents had all been closed on the boiler, the air was pumped out, and it collapsed like tinfoil. The accident caused that particular power plant to be delayed years in getting onto the generating network, and the damages, primarily the cost of acquiring electricity from other states, ran to the hundreds of millions of dollars.

    I worked for an experienced trial attorney who gave me occasional assignments, but I did not feel that I was a part of the lawsuit. When I asked him about this, he candidly admitted that, indeed, I was not a part of the lawsuit; he was handling it by himself. He considered it more efficient for a single lawyer to handle the case, and he was that lawyer. While he would give me a few assignments on peripheral matters, there was no chance that I would have any significant responsibility on the case: he needed to be in touch with every aspect of the case; there was nothing to delegate.

    From that attorney I learned that a single lawyer can handle any size of lawsuit, even one that involved hundreds of thousands of documents. Indeed, since one lawyer has to try the suit, it is most efficient if that lawyer is the one who is familiar with every aspect of the case.

    Corollary: If a Lawsuit is Too Big for One Lawyer, it is Not Triable.  If a case is truly too big for a single attorney to handle, then it is probably too big for a judge or jury to try. If there is so much to the case that a single skilled trial attorney cannot comprehend it, how can we expect a single judge or, much less, a collection of average folk on a jury to understand it?

    There is probably no better example of the untriable lawsuit than the case of United States v. IBM. Filed in the closing days of the Johnson administration by Attorney General Ramsey Clark, the case attempted to prove that IBM had monopolized the computer industry. The case involved millions of documents, and its trial, before a single judge, went on for half a dozen years, rehashing the growth of markets in products some of which were long since obsolete. It was tried by a team of a couple dozen attorneys from the Cravath firm in New York and some hundreds of employees of IBM. Eventually the government dismissed the case. The case was clearly beyond the capacity of the judicial system to comprehend or to adjudicate rationally.

    Another Corollary: No Lawsuit is Too Small for a Sole Practitioner.  Most of us, however, do not have lawsuits that are too big, we have lawsuits that are too small. (Refer as this point to the final corollary, "Sole Practitioners Are More Likely to Tell You to Forget It and Go Home.") Typically, when a small case must be tried, or in some way resolved, the sole practitioner is able to do it, charge a reasonable fee, and get a result. The large firm won't even touch small matters -- unless you are a big client of the firm. Your case, however small, is important to the sole practitioner.

  2. Sole practitioners don't get overwhelmed -- firm lawyers do.

    Herein of greed and lifestyle. The sole practitioner has much more control over his workload than does the firm attorney. Many law firms expect their young associates to bill 2,400 hours billed per year, a killing load. Given that sort of a burden on attorneys, any additional work can quickly push an attorney to overload, and overload means one of two things: inadequate work or a change of attorneys on the case. Attorneys are moved around on cases to make sure that the requisite amount of work gets done by all attorneys.

    The Big Firm Staffing Shuffle.  Although the law firm considers the staffing of cases as they come in, that staffing decision is by no means irrevocable and is not generally made by the lawyer who will be expected to do the work. The sole practitioner knows what his caseload is and what his availability is; he will make his decision with respect to whether he should take a case based on firsthand knowledge of his workload. His informed decision is likely to be more reliable than the decision of a firm partner who may have no real knowledge of the workload of the attorney to whom she intends to assign the case.

    One Lawyer, One Time Budget.  Moreover, when a sole practitioner takes a huge case, he will budget his time accordingly: he will have most of his time available for that case. In the implosion case I mentioned above, the attorney was spending 85 per cent of his time on that case and was available for all depositions and document productions -- and, in that case, for the depositions concerning document production. In the typical big firm case in which several lawyers are assigned to the case, it frequently happens that all those lawyers are otherwise engaged when something comes up about the lawsuit. Having one lawyer responsible for a case creates responsibility for that case, and responsibility is indispensable for effective litigation.

    Judges Understand Solos.  There is also a different expectation for the court when an attorney is a sole practitioner. Judges expect that firm lawyers will have other attorneys who can cover for them and will not be inclined to bend schedules for them. Judges, many of whom were themselves sole practitioners, are generally willing to alter schedules to meet the needs of an attorney who has no one in her office who can cover for her.

  3. Jurors can relate.

    Jurors are ordinary people who generally do their best to reach the right conclusions. What the lawyer does in the courtroom can have a profound influence on the way they discharge their task. We do not want to do anything that will prejudice our clients at trial. We may do that when more than a single lawyer tries the case.

    "Just Another Boss".  There is the possibility that the big firm lawyer may have no rapport with the working folk of the jury. Money and the firm's social milieu may insulate the firm lawyer from the pressures of ordinary life: because of that distance, the firm lawyer may not be able to perceive issues that will ignite the jury's feelings and may blunder into actions and language that may alienate the jury.

    How a Snap of the Fingers Can Lose the Jury.  For example, when we try cases with subordinates, we may offend jurors by the way we deal with our courtroom assistants. Many jurors have spent their lives being ordered around by self-important bosses; they do not take kindly to the Prince of the Courtroom who directs his associates to do things with a snap of his fingers. The trial lawyer who commands a cadre of his minions in the courtroom has the potential to be perceived as the worst kind of autocrat. Jurors do not prize efficiency; they respond to virtues on a smaller, more human scale. They will understand when an attorney has to search for a piece of paper, but they will likely not forgive the attorney whom they see as imperious.

    Dan Webb, former United States Attorney in Chicago and lead counsel in the criminal trial of Admiral John Poindexter, commented on this problem in an interview in Litigation Magazine:

    "I never want to appear to be ordering around the people on my trial team. That sort of thing is offensive, but even some experienced lawyers do it, particularly in complex document cases -- they yell at young associates to 'get me this document' or 'put that chart up.'

    "The late Irving Younger, a great trial advocacy teacher, once got into trouble on just this point. After a big trial that Younger had handled in private practice, jurors commented that he was well organized, but they criticized the way he barked out orders. Every time he snapped his fingers, some young assistant slapped a document in his hand. Jurors were put off by that."

    The point is this: You must organize things so that you are the sole performer.

    Daniel in the Lion's Den.  I would suggest that the point is that you should be the sole performer all the way through. Frankly, I cannot imagine being in a better position at trial than being the sole attorney standing against a phalanx of attorneys on the other side.

  4. Two people will not tell the same story.

    Having more than one lawyer handle witnesses is a common practice in law firms when more than one lawyer is on a case. Sometimes the firm is trying to give its inexperienced attorneys some trial time on an unimportant witness. (If the witness is unimportant, why bother to call him? And if he is important, why entrust him to an inexperienced attorney?) At other times it is simply to give the lead counsel a rest. For whatever reason it is done, this practice can be detrimental to the flow of the trial and may damage the client's interests.

    It's About Storytelling  Every trial is an exercise in storytelling. The trial attorney must decide what the story is that he will tell to the judge or jury and must stick to that version. The keys to effective storytelling are simplicity and consistency. The introduction of another lawyer into the trial will change the story that is being told, like stuffing a passage of William Faulkner's florid prose into the middle of a short story by Ernest Hemingway. I have tried one or two cases with other attorneys, and my experience has been that as I sit and listen to my co-counsel question or cross-examine a witness, I ask myself, "Why is he asking that question?" or "Why doesn't he ask the obvious question?" or "Why doesn't he ask the simple, clear question?" In short, I find that my co-counsel will not ask the questions I would ask: he does not tell the same story that I tell. His view of the case may be the better one, but mixing our two versions will only serve to leave the jury drifting aimlessly.

    Corollary: If the Trial Lawyer Does Not Do the Discovery, He Will Not Know What Story to Tell  The way we decide what story to tell is by looking at all the pieces of the story: the witnesses and the documents. You cannot effectively tell a story that is untrue to those hard facts; you cannot, for example, paint Michael Milken as an innocent, seduced and led astray. The only way that we can effectively determine what story to tell is by having looked at all the documents and having seen and tested all of the witnesses. If your associate has taken the witnesses' depositions, how can you really know what they are like or how they will react to you on the witness stand? If your investigator has interviewed the witnesses, how can you know how they will respond when questioned on the key issues in the case?

    Another Corollary: Spreading the Work Around Jeopardizes Competence  Only the lawyer in full command of all the facts of the case can adequately do the legal research on the case. When others do it, points may well be missed. Let me give an example. The attorney in charge of the case, thinking facts A, B, and C are relevant to the legal issues in his case, communicates those facts to his research associate. When consulted, the cases do reveal that A, B, and C are relevant, but also impart that facts X, Y, and Z, which exist in the case, are often determinative of the legal result. The associate, however, does not know that X, Y, and Z exist in this case because the lawyer in charge was not farsighted enough to communicate to him because he did not think them relevant. Only if the lawyer in command of all the facts of the case does the research on the case can one be sure that all the research is competently done. And that means that one lawyer must do it all.

    By the same token, when certain previously unknown facts are unearthed in a deposition, if the lawyer taking the deposition has not done the research and noted the points on which the legal result turns, he may not be aware of how damaging the unexpected admission by the deponent is and he may fail to follow up to his full advantage. In a time when our deposition opportunities are becoming circumscribed by rules increasingly hostile to unfettered discovery, in which we are not able to redepose at will, this kind of inefficiency is increasingly intolerable.

  5. Sole practitioners are cheaper.

    My experience in facing large firms in litigations is that my fees are one-third to one-half of what a firm's fees are, even when my hourly billing rate is the highest one in a case. Some of this is due to the typical firm's reflexive tendency to deal with each case as a profit center. Some of it is due to the inefficiencies inherent in a firm practice.

    Corollary: Sole Practitioners Have Lower Overhead  Large firms are driven by overhead: rent on large offices, staff salaries, associates' salaries, and targeted draws for partners all combine to make the firm's monthly nut a substantial one. These days most sole practitioners have cut overhead to the bone: part-time secretaries, voice mail instead of receptionists, paralegals hired only on a contract basis, and small offices are the hallmarks of the small practitioner in the twenty-first century. Whether calculated absolutely or per-attorney, the sole practitioner's monthly cash requirement is infinitesimal in comparison to the large firm's.

    Another Corollary: Sole Practitioners are More Efficient than Groups of Lawyers  The efficiency arises from the limited nature of verbal communication. There is no way that one lawyer can effectively communicate all he knows about a case to another lawyer on the case. Only if the other lawyer is present for all the depositions and reads all the documents and pleadings will he be truly up to speed on the case; and doubling lawyer time in that fashion is prohibitively expensive. Thus, a great deal of firm time is spent in one lawyer communicating the case, imperfectly, to another lawyer on the case. The substantive losses that one can suffer when lawyers divide up the duties of research, discovery, and trial have been discussed above.

    Yet Another Corollary: Sole Practitioners Can Be Fairer and More Flexible with Their Fees  Because of their overhead and their institutional expectations and structures, firms are less likely than sole practitioner to be flexible with their fees. All attorneys in a firm are at least in part rated by and compensated according to how many hours they bill and collect. The system gives strong incentives to each attorney to bill and collect as much as he can. The overhead of the firm demands these kinds of incentives. Thus the firm is not likely to be able to figure out how to offer flat rates or contingency fees. Sole practitioners, on the other hand, can finance a case in a wide variety of ways: hourly rates, flat fees, contingency fees, lowered hourly rates plus an contingency, payout plans, retainer fee up front plus a contingency for the remainder of the case-any of these may be the right away to finance litigation, and sole practitioners don't have to convene a committee to authorize the effective way of paying for a lawsuit.

    Still One More Corollary (The Last, Trust Me): Sole Practitioners Are More Likely to Tell You to Forget It and Go Home  The most valuable trial attorney is often she who tells the client not to bother with his case, but to swallow his pride and forget his grievance. She may say that because the case is weak, the defendant is impecunious, or the venue is biased. For whatever reason, there are some cases in which the attorney can see what the client cannot: that the game is not worth the candle.

    Clearly there are some sole practitioners who bring poor cases to collect their hourly fees and there are many firm attorneys who discourage their clients' litigious proclivities, but I must say that in my own experience the least meritorious cases I have seen have been brought by large firms being paid on an hourly basis. Many of us in the profession have observed or experienced law firms who have milked large corporate or governmental clients for fees far beyond the merits of the case being litigated. The contingent fee, more the hallmark for the risk-taking entrepreneur than the staid firm, also helps check the impulse to pad the docket.

    Sole practitioners are no less venal than their firm counterparts, but they simply do not have the same pressures to manufacture litigation; when they do, they will succumb to temptation just as frequently. Chances are, however, that the sole practitioner has shaved her overhead and can more easily give you the advice you need to hear: that you should forget about litigation and go home quietly.

  6. The client knows who the lawyer is.

    This is how it looks from the client's perspective: When you hire a sole practitioner, you know who your lawyer is; when you hire a firm, you do not. When there is only one lawyer in the office, there is no question about who it is that you should talk to about your case or who is responsible for the work to be done. This cannot be said of law firms.

    Law Firm Pecking Order.  Law firms work hierarchically. There is a partner who is in charge of the case and there are associates or, in some cases, lesser partners who will do the work on the case. The partner in charge may, or may not, try the case. Whatever his role in the case is, he will bill some time on the case. The lawyers who staff the case ("staffing a case" is a law firm's phrase, wholly alien to the sole practitioner) may change. They may be promoted from discovery attorney to trial attorney. The lawyer who has done all the work on the case may be moved from your case to a case which is more important to the firm. The law firm's Rule of the Most Favored Client demands that the best attorneys go the best client; if one of those skillful advocates is assigned to a case brought in by someone other than the Most Favored Client, that lawyer may be snatched away from the case before it comes to trial.

  7. Conclusion:

    There are costs involved in the shuffling of attorneys. The new lawyers must learn what the case is about and, most often, the client will be expected to pay for this educational process. There is an even greater loss. One of the most important things we gain from the discovery process is a sense of what kind of people the players are. In a deposition of an important witness we are concerned not only with what she says, but also with how she will appear to the jury. We are seeing what her weak points are, how she will need to be attacked or defended at trial. It is this vital information which does not appear on the cold face of the deposition transcript and which may be very difficult to convey to the new attorney coming onto the case. In some cases there is no opportunity to do this at all, as for example when the attorney who has done all the work is thrown into a hot new case which so absorbs him that he does not have the time to brief the new attorney adequately -- or when he simply quits and goes to work somewhere else.

    Almost needless to say, none of these awful things can happen if only one lawyer is involved with the case. The litigant will have one lawyer who cannot duck any of his questions about the conduct or cost of the litigation. Clients like this.