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Knowing Your Adversary Matters

Our justice system is adversarial.  It’s designed that way.  Both sides zealously make their arguments and the best one wins (usually).  At least, the “trier of fact” hears both sides and then reaches some sort of reasonable conclusion (usually). Claims and cases against the government under the Federal Tort Claims Act are no different.  We advocate strongly for our clients and we fully expect the government lawyers to do the same for the agency they are representing.  It’s their job.

For more than 30 years, I defended doctors and other healthcare providers.  While I never worked directly for the state or federal government, I dealt with many insurance companies and corporations.  I was also retained at times by state and local governments.  This background provides me with an excellent perspective on the position of my current adversaries, federal government lawyers.  They are operating in a very process driven and often flawed bureaucracy.  I have some natural sympathy for them.  

The funny thing about our adversarial system is that it doesn’t mean that those involved have to be unreasonable or difficult - and dishonesty should never be part of it.  We deal with facts, some of which may help our case and some of which hurt.  There are issues of science and medicine.  Again, such concerns can cut both ways.  The applicable law has the same impact.  What does have to happen is both sides need to understand reality, and most of the time that happens if you have good lawyers on both sides of a case. 

Most of the government lawyers with whom we have dealt over the years are decent people.  They want to do a good job, although I get the sense that many of them are very frustrated by the environment in which they must operate.  Many are people we have dealt with for years now.  Often, we have friendly discussions about non-case related matters. We have tried hard to work with these lawyers in a way that actually helps them do their jobs while at the same time benefiting our clients.  That’s not as counter-intuitive as it seems.  I will explain. 

One of the things I learned from my many years as a defense lawyer is that the lawyers on the other side often shoot themselves in the foot because they want to seem tough and not give up anything.  Sometimes they try to avoid disclosing information – even when such information was largely helpful for their clients.  Even more shocking to me are the lawyers who treat weak cases about the same as they handle strong ones.  Or worse, underwork the good cases and overwork the bad ones.  More than a few times I won cases for healthcare providers who really didn’t deserve to win, and there were times when injured patients walked away empty-handed.  As I moved into representing those patients, mostly veterans and military families, I didn’t want that happening to them. 

Here are some of the lessons I’ve applied:

The first rule above all others:  Pick your cases.  It does no one any good to pursue a weak case.  It makes me sad to turn away people, but if we don’t have a reasonable chance of getting a recovery for them, it makes no sense to take the case or continue to pursue it.

Apropos of the first rule, if the lawyers on the other side know that you pick your cases well, they will take you more seriously.  

Along the same lines, make sure the other side knows you have a strong case and why it is strong.

Unless it is privileged (legally protected), do not withhold requested information even if it may not be wholly helpful.  It is likely going to come out eventually, and it does neither the immediate client nor future clients a service if a lawyer is known as someone who plays games.

Be courteous and respectful.  If you are difficult or too aggressive, people will not want to deal with you – and then it is the client who can get hurt.  Plus, I have to add that at times I have lost my temper with opposing counsel.  I can’t say it ever really helped my case.

Mean what you say and say what you mean.  Being a zealous advocate does not mean you cannot be direct and honest.  You can and you should.  

Along the same lines, never make threats, only promises.  For example, if you say you are going to file suit if a settlement offer is not forthcoming in a certain time, you need to actually do it.  If you draw lines or take hard stances and then back off, before long the other side won’t take you seriously. 

I am a bit tongue-in-cheek when I say this in the office, but one of the best things we can do for our clients is make the life of the government lawyer easier.  That does not mean we are not tough advocates trying to get the best recoveries we can for our clients.  It means we work very hard to keep all concerned focused on stuff that really matters.  If it is consistently clear that we have our ducks in a row and we mean business, we get taken seriously and our clients get better resolutions. 


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