Lead Them Not Into Temptation

The problem for many big corporations, insurance companies, financial institutions and even consumers to a lesser degree is that it is easy for a lawyer to lead them into temptation.  To the lawyer it is the means of getting paid more per case.  To the entity it is the feeling of feeling vindicated, even if the final result does not necessarily turn out that way (kind of like the last act of defiance).

We all know lawyers that do this.  Not only do we know who they are, they know who they are.  They probably live a little better than the rest of us, they are never in their offices because they are always in depositions somewhere, and they probably have the best hourly and collection rates around.  In East Texas we say that they are "Board Certified in Billing".

From my perspective typically representing the Plaintiffs, it comes at me this way.  "My client does not think it did anything wrong".  Or, their client wants to argue that a 1949 decision out of Puerto Rico represents a line of cases that represents good law, even if it goes against every decision in the circuit in which the suit resides.  Or, the one I love the best, is that the attorney is concerned not for his client, but what message this sends if he allows his client to settle this claim.  There is of course the so-called "Wal-Mart Defense" in which not only will there be no settlement, they will try to bury you regardless of the costs, for the principal of the thing.  It has to be the delight of those attorneys who think to highly of themselves to convince their clients that this is a viable option.

The problem for many big corporations, insurance companies, financial institutions and even consumers to a lesser degree is that it is easy for a lawyer to lead them into temptation.  To the lawyer it is the means of getting paid more per case.  To the entity it is the feeling of feeling vindicated, even if the final result does not necessarily turn out that way (kind of like the last act of defiance).

We all know lawyers that do this.  Not only do we know who they are, they know who they are.  They probably live a little better than the rest of us, they are never in their offices because they are always in depositions somewhere, and they probably have the best hourly and collection rates around.  In East Texas we say that they are "Board Certified in Billing".

From my perspective typically representing the Plaintiffs, it comes at me this way.  "My client does not think it did anything wrong".  Or, their client wants to argue that a 1949 decision out of Puerto Rico represents a line of cases that represents good law, even if it goes against every decision in the circuit in which the suit resides.  Or, the one I love the best, is that the attorney is concerned not for his client, but what message this sends if he allows his client to settle this claim.  There is of course the so-called "Wal-Mart Defense" in which not only will there be no settlement, they will try to bury you regardless of the costs, for the principal of the thing.  It has to be the delight of those attorneys who think to highly of themselves to convince their clients that this is a viable option.

Do not get me wrong.  Everyone can have a difference of opinion.  I have been involved in a good number of cases in which there are issues a judge needs to decide.  I am talking about the overwhelming number of cases filed in which there is no legitimate defense, but the matter needs to be litigated because of "bigger issues".

The truth of the matter is this.  Although it is hard to believe, large corporations, and especially financial institutions, feel victimized by litigation as it is.  It is not the same victimization that a consumer feels, when they see their financial future eroding before them, but it is more of the feeling of always swatting at the knats and being unable to get away from them.  Where a consumer might view the prospect of being sued as grief, the financial institution still looks at it with a great deal of frustration.  As a result, it is just not that hard for an attorney to lead these entities and defendants into temptation of fighting forward on a matter or lawsuit that is pretty much indefensible.  After all, unlike the consumer that always worries about money, the corporation, bank, or insurance employee authorizing these shenanigans will not have to account to the bean counters for their indiscretions every or only after the money is spent.

We all know who these attorneys are, because they are always the same attorneys.  Although any group of parties and their attorneys can get sideways with each other, these attorneys always get sideways with the other side no matter how small the controversy.  With them there are always bigger issues to prove.  Regardless of the law and the facts of the case, they believe they have tactics on their side.  But you know what?  A party to a lawsuit should not win or lose due to tactics.  They should win or lose due to the law and the truth.

I particularly love these large institutions that retain various lawyers to represent them in particular kinds of work.  We know that if they refer it to Ms. Reasonable that the case will be handled one way, and if they refer it to Mr. Rambo it will be handled with all of the grace Jack Nicholson as the tormented writer Jack Torrance displayed in the movie The Shining.  We know the back story, do we not?  Ms. Reasonable discusses the law with her client, provides them the pros and cons of moving forward, and encourages them to give her some authority to resolve the matter.  She does not give up on attempting to resolve the matter on the most advantageous terms possible for her client, the the approach is different.  Mr. Rambo plays on his client's frustration and weaknesses, and does his best to lead them into temptation.  The goal is not really the bigger issue, the injustice of the law, the image this set as to consumers.  The goal is Mr. Rambo's appetite for contentiousness and money regardless really of the law.

And, I can assure you that Mr. Rambo will be making the personal life of the consumer and the consumer's attorney the issue.  Like John McCain's current lipstick on a pig controversy, the issues of the case will be ignored for matters that distract and attack.  The argument will be that this case is before the Court only because the consumer attorney practices consumer law, or represents people on stay violation issues, or represents people in personal injury cases.  I actually had to go to Court in the last 18 months over an attorney whose defense was that I, as my client's attorney, maintain a website that promotes people to hire me to file the cases I do.  Of course, this ignores the fact that Congress created a Code provision that specifically allowed consumers to retain their own lawyers to bring these actions.  It also ignores the fact that this attorney also maintained a website promoting his services to financial institutions defend such matters.  To put it indelicately, it is what Texas country boys mean when they say "my shit don't stink but your's does".  It argues that you, as an attorney, do not have a right to exist, but Mr. Rambo does.  I, of course, probably think if the argument exists at all it should be the otherway around. But, the real issue is that this is not the issue.  As stated, it is the process of distract and attack.

Are these silly lipstick arguments for my benefit, for my client's benefit, or the Court's benefit?  I think we all know the answer is no.  The silly arguments are for the benefit of Mr. Rambo's clients. He needs something to whip the client into a frenzy, or the client will not pay them to go forward.  They still need a morsel of something to lead the client into temptation - to deliver the client into evil.

From my perspective, regardless of what other attorneys are doing, you have to be on guard to be an honest broker and not lead your client into temptation of continued litigation when everything reasonably suggest they should not go there.

Do not get me wrong.  Everyone can have a difference of opinion.  I have been involved in a good number of cases in which there are issues a judge needs to decide.  I am talking about the overwhelming number of cases filed in which there is no legitimate defense, but the matter needs to be litigated because of "bigger issues".

The truth of the matter is this.  Although it is hard to believe, large corporations, and especially financial institutions, feel victimized by litigation as it is.  It is not the same victimization that a consumer feels, when they see their financial future eroding before them, but it is more of the feeling of always swatting at the knats and being unable to get away from them.  Where a consumer might view the prospect of being sued as grief, the financial institution still looks at it with a great deal of frustration.  As a result, it is just not that hard for an attorney to lead these entities and defendants into temptation of fighting forward on a matter or lawsuit that is pretty much indefensible.  After all, unlike the consumer that always worries about money, the corporation, bank, or insurance employee authorizing these shenanigans will not have to account to the bean counters for their indiscretions every or only after the money is spent.

We all know who these attorneys are, because they are always the same attorneys.  Although any group of parties and their attorneys can get sideways with each other, these attorneys always get sideways with the other side no matter how small the controversy.  With them there are always bigger issues to prove.  Regardless of the law and the facts of the case, they believe they have tactics on their side.  But you know what?  A party to a lawsuit should not win or lose due to tactics.  They should win or lose due to the law and the truth.

I particularly love these large institutions that retain various lawyers to represent them in particular kinds of work.  We know that if they refer it to Ms. Reasonable that the case will be handled one way, and if they refer it to Mr. Rambo it will be handled with all of the grace Jack Nicholson as the tormented writer Jack Torrance displayed in the movie The Shining.  We know the back story, do we not?  Ms. Reasonable discusses the law with her client, provides them the pros and cons of moving forward, and encourages them to give her some authority to resolve the matter.  She does not give up on attempting to resolve the matter on the most advantageous terms possible for her client, the the approach is different.  Mr. Rambo plays on his client's frustration and weaknesses, and does his best to lead them into temptation.  The goal is not really the bigger issue, the injustice of the law, the image this set as to consumers.  The goal is Mr. Rambo's appetite for contentiousness and money regardless really of the law.

And, I can assure you that Mr. Rambo will be making the personal life of the consumer and the consumer's attorney the issue.  Like John McCain's current lipstick on a pig controversy, the issues of the case will be ignored for matters that distract and attack.  The argument will be that this case is before the Court only because the consumer attorney practices consumer law, or represents people on stay violation issues, or represents people in personal injury cases.  I actually had to go to Court in the last 18 months over an attorney whose defense was that I, as my client's attorney, maintain a website that promotes people to hire me to file the cases I do.  Of course, this ignores the fact that Congress created a Code provision that specifically allowed consumers to retain their own lawyers to bring these actions.  It also ignores the fact that this attorney also maintained a website promoting his services to financial institutions defend such matters.  To put it indelicately, it is what Texas country boys mean when they say "my shit don't stink but your's does".  It argues that you, as an attorney, do not have a right to exist, but Mr. Rambo does.  I, of course, probably think if the argument exists at all it should be the otherway around. But, the real issue is that this is not the issue.  As stated, it is the process of distract and attack.

Are these silly lipstick arguments for my benefit, for my client's benefit, or the Court's benefit?  I think we all know the answer is no.  The silly arguments are for the benefit of Mr. Rambo's clients. He needs something to whip the client into a frenzy, or the client will not pay them to go forward.  They still need a morsel of something to lead the client into temptation - to deliver the client into evil.

From my perspective, regardless of what other attorneys are doing, you have to be on guard to be an honest broker and not lead your client into temptation of continued litigation when everything reasonably suggest they should not go there.

Comments

[JAMES GREEN]

Mr. Chuck you said a mouth full.We could have settle this case in Nov.2008,against Cenlar Federal Savings Bank-Aurora Loan Services-MidFirst Bank(Midland Mo)and the Law Firm Barrett Burke Wilson Castle Daffin& Frappier,but mediation was just a good time to size things up.All these Boys violated the discharge order and the FDCPA for sure.How do you sell a discharged debt,attempt to collect and not be guity? We have credit reports from 2001,2002,2004,2005,2006,and these bad boys are all sitting there looking cute on our credit report.What about the letter that BBWCDF Attorney Gray Burks wrote to us saying that we yet owed the discharged debt? I'd like to hear their defense.We sent a copy of the discharge order to all of them yrs. ago certified mail.They all risk media attention,all their dirt uncoverd in public,more folk coming out of the wood work and hopefully punitive damages,actual,compensatory damages and a whole lot more for a willful violation.For such a co. like MidFirst Bank who has a portfolio of at least 25.9 billion and dont for get about BBWCDF the Foreclousure Mill,11 Million or so aint bad.But like you say they must let every one know that they are THA MAN!!Aurora and Cenlar do have a little sense,they have made offers.But I would rather have their under ware exposed in public,consumers must be made aware of such low down,under hand tactic.We are sure if it happen to us it must be happening to many others.I wonder if the CEO know that they pu-pu can come out with a loud stink.I guess when your Co. bring in over 25.9 bilion a yr. you can just about do what ever you want to 'Right'or 'Wrong'