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Special considerations for counsel in plaintiff cases

The fact that a case is a plaintiff case adds several elements to the art of choosing outside counsel. One is the greater ease of using alternative pricing. Another is the opportunity to look to additional, or at least different, counsel than those that typically handle defense cases. A further difference is the possibility that counsel of lesser ability than normally used may suffice. These differences resolve into the following particular considerations in selecting counsel for plaintiff cases:

1. Fee basis

A few additional pricing arrangements, led by contingency pricing, are available in plaintiff cases that are not usually found in defense cases. All pricing methods used for defense cases may also be used for plaintiff cases. This means that plaintiff cases open up a larger set of potential counsel. They include not only outside counsel that a client would use for hourly-based defense work but also contingency attorneys.

2. Quality of counsel

The quality of outside counsel may be of lesser importance in plaintiff cases than in defense cases. That is because some plaintiff case whose victory would be sweet but whose loss would be a minor matter. Unlike plaintiff cases, defense cases in which serious consequences result from losing. Of course, some plaintiff cases are vital matters. They include, for example, those in which a company seeks to stop actions by others that would damage a company's ability to survive and those for recovery of essential funds wrongfully appropriated by another party. In those cases, however, the most important consideration may be hiring counsel willing to take the case on a pure contingency and leave the company free of financial risk. That may attract only counsel with lesser abilities or reputation.

3. Duration of case

The likely length of a case has an important bearing on the kind of counsel needed. Different abilities are needed for clients who must obtain an injunction or get past a motion to dismiss, compared with those who plan to press for a favorable settlement or to go to trial. Since most cases that are not dismissed on motion end up settling, a client might select counsel with an eye toward getting a case in the best position to settle.

4. Threat value

There is no doubt that different plaintiff's counsel pose different levels of threat to opposing parties. Simply put, attorneys with a name for winning cases or litigating strenuously have a different effect than unknown counsel. Hiring outside counsel with a reputation of getting high-value verdicts poses a much greater threat to a defendant than hiring an unknown. In the right cases, this can move a matter to settlement quickly. The reputation of outside counsel probably makes a bigger difference in plaintiff cases than in defense cases. That is because the plaintiff, firing the first shot, sets the mood of a case, its likely money value and the course it will follow, whether to a quick conclusion based on law or to trial. While the choice of defense counsel sometimes carries a threat value, there are differences. For one, the plaintiff there already has filed suit and knows it faces resistance regardless of what defense lawyer is hired. For another, company defendants tend to set the expense and activity level in defense cases according to a case's potential judgment size. Thus, the style of case such defendants litigate varies more by the size of a case than the outside counsel they select to defend it.

5. Expected counterclaims

The qualities needed in a plaintiff's counsel change dramatically when a client expects substantial counterclaims. Clients then need counsel as adept at defending claims as seeking victory on their affirmative claims. To be sure, counterclaims are filed in most lawsuits. Often, however, they are defensive, seeking to deflect or diminish a plaintiff's claims. But in some cases, the counterclaims are as dangerous to plaintiffs as the plaintiff's claims are to a defendant. Where serious counterclaims are expected, companies need counsel fully able to defend them.

6. Familiarity with client

Finally, there is the matter of whether outside counsel needs to have past experience with a client, its operations, people, ways of doing business and areas of sensitivity and confidentiality. These matter less in plaintiff cases than in defense cases. The reason is that plaintiff cases seek to pin wrongdoing on defendants. In doing so, the discovery process often carries out a searching exploration of a defendant's files and witnesses, looking for evidence supporting the allegations of wrongdoing. That occurs to a lesser degree on a plaintiff's side. In fact, in many plaintiff cases the only evidence coming from plaintiff's people and files is proof of damage or loss. All the rest of the evidence—who did what and the motivations behind their acts—comes from a defendant's documents or the testimony of its people. While this description generalizes, in many plaintiff cases outside counsel need not defend against an intensive examination of a client's acts. Thus, there is a lesser need for outside counsel having a good knowledge of a client's business.