Last Rev. 10/29/16 10:50am

Can an Individual Practitioner Be Competitive When Opposing a Major Law Firm?

I have had 35+ years of experience in major antitrust and other lawsuits in which the defendants were represented by numerous top-rated law firms from various major cities in the United States. I can speak with the authority of my substantial experience.

The major corporations have unlimited funds to devote to winning a lawsuit if they so desire, even if the cost of winning is 10,000 times the amount of a reasonable settlement. The reason for not wanting to settle a case is usually that the defendant's lawyer tells the client that if the client settles the case it will bring on an avalanche of additional lawsuits, some from the lawyer for the plaintiff in the current case, and many other lawsuits from other lawyers that will hear about the settlement and figure that a similar lawsuit would be a source of revenue for the plaintiff-oriented law firm. In actuality, settlements occur under confidentiality agreements calling for secrecy and economic sanctions for failing to keep quiet about the existence of and/or terms of the settlement. Thus, the fears expressed are often not well founded.

In the long run, if a defendant with an unlimited bank account decides to go all the way, as to every court and as to as many issues as it dares without having one or more courts get angry with it, the plaintiff cannot win. The cost of litigation is so high for either the plaintiff (when paying by the hour) or for the plaintiff's attorney (when working on a 100% contingency basis) or both (when the costs of money and time are shared) that a long drawn out battle is not economic for the plaintiff or his lawyer especially when the end result, more than likely, is to have a final judgment for the defendant in many types of commercial cases, where legal doctrine and pleading requirements and rules of evidence and qualifications of experts are far more important to the outcome than truth and justice and what a jury decides happened in the action.

Yet, corporations pay the price for not settling a meritorious case. Judges do get angry with them for not engaging in the time-honored process of trying to negotiate a settlement. Most cases are settled instead of tried, and the judicial system in the United States would come to a screeching halt if most of the civil cases had to be tried. A defendant that obstinately refuses to engage in the settlement process could very well be on the receiving end of some judicial punishment by a judge who appropriately decides issues (when the judge could come out one way or the other) against the corporation, as sort of a warning. This is not announced, of course, and in fact may not even happen, but one never knows.

A compelling case may compel a judge to permit a plaintiff to go further than usual. A weak, meritless case will often be tossed out quickly, so I'm not talking about that type of case. Instead, I'm talking about cases with merit. Many cases with merit are tossed out by judges along the way who know that they do not have sufficient time to give a jury trial to every case having merit, which means that the judge has got to encourage parties to settle meritorious cases. Thus, an individual practitioner has a fairly long period of time - say 2 years or so in a complicated case - to go up against major law firms with the expectation of winning (i.e., with the expectation of having a meritorious case not get dismissed), but the longer a case drags on the more vulnerable the case is. The defendant corporation often has huge costs in the discovery phase of the case, and if a plaintiff's lawyer can survive a motion to dismiss (a most critical matter for the plaintiff), then the defendant may have 1-2 years of very high cost to fight the lawsuit, which is the point at which many lawsuits should be settled, to enable the defendants to avoid the high cost of litigation and the exposure to trial, an adverse verdict, and the possibility that the defendant might not be able to overcome the verdict and judgment on appeal.

The skill that is needed by the plaintiff or defendant during the initial phases of the lawsuit is being able to draft proper pleadings or attack someone else's pleadings, and to make or oppose motions to dismiss for a variety of reasons such as lack of jurisdiction, insufficiency of process, improper venue (wrong choice of court), meritless pleadings (even though the wrong took place, the wrong has to be spelled out correctly to meet pleading requirements, or the action will be dismissed). For example, the allegation of fraud requires much greater specificity in the pleadings than allegations of negligence regarding the same underlying event.

Pleadings and motions involve work in which an individual practitioner is highly competitive with a major law firm, assuming he/she is of equal skill. Money does not make much of a difference. both sides have access to electronic legal research (such as Lexis or Westlaw) and the court often places a limitation on how much it is willing to receive from a party. In many cases, the party's memorandum of law is not allowed to exceed 25 or 30 pages, something which any skilled lawyer or law firm can do within 1-3 days, the larger the law firm the more days it takes to run the drafts through the various persons wanting to see a copy and have an input in the document.

Discovery is where the major law firm excells, but at a cost that cannot be afforded by an individual plaintiff, unless the plaintiff has managed to steal many millions of dollars in some venture, or perhaps amass such amount of money legitimately. Most individuals cannot afford the costs of discovery of a major action (such as an antitrust action), and in such instances the only way they can have representation at all is to find an attorney who knows how to cut costs in unimportant or relatively unimportant areas. Major law firms seem to be reluctant to cut costs, perhaps because this means they would be cutting their own legal income. Also, major law firms are afraid of being hit with a malpractice suit for not doing everything possible to win, which may account for the extraordinary effort and cost they put in to win a case. An individual to stay in the costly ballgame has to have representation by a lawyer who understands the importance of saving money and who can explain why certain expenses can be avoided, and the risks involved to the party.

The answer to the question is Yes, the individual practitioner can be competitive, if he/she has the skills. Many lawyers trained in major law firms leave the firms and start small law firms (or "boutiques") to offer specialized legal services at substantially lower prices. These lawyers don't suddenly lose their skills when making the transition from major law firm to small law firm or individual practitioner.