So, in this series, you’ve read real Disruptive Lawyer success stories. Newsflash! Even Disruptive Lawyers don’t always succeed. But Excellence, Economy and Efficiency remain the driving force behind the Disruptive Lawyer’s litigation actions. Disruption is both strategic and intentional, even in the face of rejections from plaintiff. And here is an illustration of this point.
The Disruptive Lawyer was in his office when a long-time client called to say his company was being sued in a high-exposure case. The plaintiff’s car had hit a guardrail and she was catastrophically injured, allegedly due to how the guardrail was manufactured and/or how it was installed. Hence the suit against the client, who had installed the guardrail, as well as the state Department of Transportation and the general contractor of the road project. The client explained that it, as a subcontractor, followed the DOT specifications in installing the guardrail, and under the law there should be no liability. The Disruptive Lawyer agreed and developed a plan to quickly extricate the client from the case, given discovery would be very expensive, with thousands of documents to be exchanged and plaintiff’s projection of 30 – 40 discovery depositions.
In the first 60 days of the case, the Disruptive Lawyer took eight steps (billing less than $10,000) to investigate and work toward voluntary dismissal, persisting despite being unsuccessful at each step.
- The Disruptive Lawyer had an informational “What did my client do wrong?” call with plaintiff’s counsel wherein the plaintiff’s counsel claimed his expert put blame on the installer for failing to follow DOT standards, and the Disruptive Lawyer explained why the expert was wrong and requested a dismissal. (Unsuccessful)
- The Disruptive Lawyer sent an extensive letter to the plaintiff’s counsel explaining with documentary evidence that the expert was wrong and DOT standards were in fact followed this time and similar installations accepted dozens of times by DOT. (Unsuccessful)
- The Disruptive Lawyer followed up three times with plaintiff’s counsel, who was ignoring the dismissal request.
- The Disruptive Lawyer sent another letter pushing for a voluntary dismissal, sharing a DOT study on future installation of guardrails which included considering the installation standard outlined by plaintiff’s expert, which proved the standard cited by plaintiff’s expert was not in effect. (Unsuccessful)
- The Disruptive Lawyer called the plaintiff’s counsel again, requesting a dismissal. The plaintiff respectfully stated, “While I think your position is persuasive, I need to go through discovery to confirm same.” (Unsuccessful)
- The Disruptive Lawyer sent the plaintiff a frivolous litigation letter, indicating that the defendant should not have to spend $50,000 on defense costs so that the plaintiff could investigate the claim. (Unsuccessful)
- The Disruptive Lawyer offered the plaintiff a tolling on the statute of limitations in favor of a voluntary dismissal to allay any fear of the discovery of evidence making installer culpable. (Unsuccessful)
- The Disruptive Lawyer advised his client he was authorized to make an aggressive Offer of Judgment to force a voluntary dismissal or plaintiff would be exposed to attorney’s fees. (Unsuccessful)
Given the case was catastrophic, the plaintiff’s counsel concluded a voluntary dismissal was not something he could sell to his client. So, yes, the Disruptive Lawyer failed. At least in the short term. The case will continue and at some point, the Offer of Judgment will force the plaintiff to dismiss or pay attorney’s fees if the Disruptive Lawyer is successful on an MSJ.
The Takeaway
Before your lawyer bills $50,000 to $100,000 to defend a case, does he/she attempt once or twice, or does he/she try four, five, six, seven, or even eight different times to push for a voluntary dismissal? If your lawyer practices disruptively and is successful on just a handful of cases a year, it will save over well into the six figures in fees and indemnity.