Defense Lawyers Turned Plaintiffs Keep Thinking Like Defenders
A Winston & Strawn partner liked the other side's proposed timeline, until she remembered which side she was on.
Original Jurisdiction · Biglaw’s Embrace Of Contingency LitigationEva Cole was in the middle of a busy day, clicking through emails, when she opened a draft calendar sent by her opponents. A pretrial schedule is the calendar of deadlines leading up to trial.
Cole, a litigation partner at Winston & Strawn, scanned it and felt instant approval.
“Oh, this seems like an extremely reasonable schedule,” she recalled thinking.
Then she caught herself. In that case she was representing the plaintiff, the party bringing the claim. A slow and comfortable timetable helps the defendant, the party being sued, which often benefits from delay. For her side, the same dates were bad news.
“This is a case where I'm the plaintiff. This is a terrible schedule,” she recalled thinking. “This is gonna take way too long.”
That slip shows why traditionally defense-oriented corporate firms find plaintiff work so disorienting. On defense, firms are paid by the hour whether they win or lose. On plaintiff-side contingency work, they advance the time and costs and take a share of the winnings, so every extra month and every extra task comes out of their own pocket.
Avi Weitzman, co-chair of Complex Litigation and Arbitration at Paul Hastings, said the biggest challenge is associates rather than partners. His refrain to his team is, “Guys, we're the plaintiff here. Stop playing defense. Let's play offense.”
Instead of reacting, he tells them to look ahead, move the case forward every day, and find ways to force a settlement.
The economic habit runs deep. Plaintiffs’ lawyer Alex Walsh, formerly at Paul Weiss and now at Anapol Weiss, has noted that defense lawyers in large firms can afford to chase every issue because they bill by the hour, while plaintiff lawyers must choose which witnesses and evidence are truly worth pursuing.
Cole said the adjustment calls for thinking more aggressively and for treating publicity as a way to advance a claim rather than as damage control. She described that shift as fun.
Questions people ask
What does it mean to work on contingency?
It means the law firm does not bill by the hour and instead takes a percentage of what the client wins, often one third plus costs. If the client loses, the firm generally gets little or nothing for its time. That is why cost control and picking strong cases matter so much.
Why would a defendant want a slower schedule?
Delay can reduce pressure to settle, stretch out payments, and wear down an opponent paying its own way. For a plaintiff that wants money or change, and especially one paying lawyers on contingency, time is expensive. So the same calendar can look fair to one side and harmful to the other.