Practicing Consumer Law in These Times

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Guest blog by Ronald Burdge

Consumer law may be in for tough times in the next four years and the way we practice law will have to change with it if consumer advocates are to survive. Some precautions come to mind:

1. Think about your attorney-client fee agreement. When times get tough, you still need to make a living. Consider alternative fee agreements. Balance your contingent caseload with paying cases. And if a client does not pay litigation costs, the client is not vested in the fight. A client who is not willing to commit their resources to their own cause to their best ability is not worth the investment of your resources. You cannot allow yourself to care more about a case than your client does. You can go broke trying. I know a bartender who used to be a good, decent lawyer who ended up that way. If you want to help people tomorrow, you have to earn a living today.

2. Examine your intake screening process. As consumer rights are restricted by judges and juries, good case selection becomes critical. We have to take cases that have a strong emotional appeal based on fundamental concepts of right and wrong. Borderline cases are a risky investment of your time and resources. Don’t take doubtful clients and cases.  When you take a case, be mindful of your resources and the case merits but never stop fighting until you get a just result. Winning for a righteous cause breeds respect. Losing breeds even more.

3. Pick your clients carefully. Tell them on Day One that you negotiate settlement terms with your mind set toward a jury trial. The best case in the world is not worth anything without a client who is willing to pursue it with you. And the best client in the world will not pursue it unless they believe you are willing to fight for them. Clients need to know that we will fight to the bitter end to get justice. Then get in the fight and keep your client involved by your side.

4. Count on going to trial. Stall and delay is the mantra of the defense. By the time they finally get around to talking about settlement, we have invested larger amounts of our resources in the fight. The defense knows that coupling that with the emotional aggravation and economic difficulty the time delay imposes on consumers, results in maximum leverage on both us and our clients. Good cases can begin to settle badly. We are being set up. Defendants are putting us and our clients in an economic meat grinder. And they are quietly laughing when they get a cheap settlement from a desperate consumer or a cash-strapped lawyer. Be prepared for it.

5. Make sure judges know you will go to trial. It is tough to stand up to a judge who presses settlement hard. We have all been there. Well, justice is hard work and we need to stand up for it more often. People need to know that we will work hard for what we believe to be right, that our moral compass dictates our case handling. That means take your client’s case personally. If you can’t, then do not take it, do not go to trial, and do not get in front of a jury. Start thinking of every client as your son, your daughter, your father, or your mother. When they are right, fight for them because they are right. When they are wrong, walk away.

6. Hone your courtroom skills and do not be afraid of your opponent. They very likely have less trial experience than you do. Still, prepare, prepare, prepare. The rabbit lost the race because he did not think he needed to race hard. The tortoise, on the other hand, took to the race with continual, hard effort. We win our cases because we care more than the other side cares. Always assume the other attorney is better than you and always act in the courtroom like you are better than they are. A jury can smell weakness. They can smell it with a witness or a lawyer. Thorough preparation breeds confidence in yourself. Self confidence breeds confidence in your case by the jury. It also breeds trepidation and fear in the mind of your opponent, to say nothing about the respect it breeds from the bench.

7. In the courtroom, never doubt your case, never doubt your client, never show fear, and never show surprise. If you have a doubt about your case or your client, anywhere along the way, then get out of it. Judges and defense attorneys know who will go to trial and who will not. A bad case can hurt your reputation beyond measure. You want a high level of judicial respect in you and your cases—and a high level of fear in your opponent, both the attorney and the target defendant. You will get better settlements because of that. You will also get better verdicts when they make you go to trial.

The principle is simple—believing in your client’s case breeds believing in yourself, breeds jury belief in your client’s cause, breeds judicial and defense respect for you.

For at least the next four years, things are likely to get tougher before they get easier for consumer lawyers. The time to prepare is here.

Ronald L Burdge practices law in Ohio and Kentucky state and federal courts and Indiana and Colorado federal courts, and by pro hac admission in other states since 1978 and has tried over a hundred cases, over 50 reported cases, and is a frequent speaker on Consumer Law and Attorney Fee issues. First named to Super Lawyer status in 2005 and repeatedly thereafter by Thomson Reuters New York, his practice is entirely devoted to representing consumers and providing expert witness testimony on Consumer Law and Attorney Fee issues, with data drawn from his US Consumer Law Attorney Fee Survey Report conducted annually since 1999. He was named NACA’s Trial Lawyer of the Year in 2004 and is a prior member of the NACA Board of Directors. Mr. Burdge’s complete CV is located online at TheLawCoach.com.