Personal injury attorneys play a critical role in society both for those that get injured as well as those who might be at fault for causing the accident and injury. During my 17 years as a plaintiff personal injury trial attorney, I was under the misconception that defense attorneys had it easy. As a plaintiff attorney, we had a burden to prove. I would always say, “They only have to poke holes in the evidence.” Now that I’m a defense attorney, I learned my lesson. We do so much more than just “poke holes.” While both sides require distinct skills and perspectives, I actually feel that I do more work as a defense attorney.
Defense attorneys must analyze and scrutinize the plaintiff's claims and have a deep understanding of it in order to identify weaknesses and develop strategies to counter them. It’s important to note that we can’t just challenge the plaintiff’s allegations without doing our own, independent investigation. We need to investigate to be sure we know about all of the possible witnesses, we need to interview all of the witnesses ourselves and cannot rely on a copy of a transcript the plaintiff attorney may give us. If the plaintiff attorney hires an expert to testify on behalf of the plaintiff, we need to take a discovery deposition which is our opportunity to ask questions about why they feel the way they do, then we can try to find things to dispute. In addition to personally interviewing the expert, we also need to review all the medical records ourselves.
Plaintiff attorneys are accustomed to advocating for injured people and seeking justice, while defense attorneys focus on protecting their clients from liability. In order to accomplish this, we must adopt a more adversarial stance. A defense attorney who switched from the plaintiff's side of personal injury must also adapt to communicating with a different type of client. We typically have both the commercial company (when a tractor-trailer is involved), the insurance carrier, and the driver. The company is the client, and corporate defendants are often more formal and at times more demanding.
There are significant differences at the actual trial. For both opening and closing statements, the plaintiff's attorney goes first. To make it even more challenging, the plaintiff’s attorney gets to stand up and speak to the jury again. This is called a rebuttal and is given to the plaintiff because only the plaintiff has a burden to prove. A well-prepared defense attorney will discuss that in their closing. They should let the jury know that the plaintiff will have one more opportunity to talk to them, but we don’t. I even ask them to think about what I would say if could stand up again!
One big difference between plaintiff and defense personal injury attorneys is the process of how we are hired. An injured party who wishes to be represented by counsel will retain a plaintiff attorney of his/her choosing. They will typically agree to pay the lawyer 33 and 1/3 % - 45% of the settlement or verdict depending on what stage of litigation the case reaches. In defense personal injury, many insurance policies cover the cost of a defense attorney if you are involved in an automobile accident and the other driver files a lawsuit against you for damages. In that case, you don’t pay anything for the legal services. Of course, you also have no say in which attorney represents you. Some clients will not be as responsive to an attorney they see as “free.” A seasoned defense attorney can handle it with some patience and an explanation that our job is the same regardless of who pays. They are the client (along with the company absent any conflict) and my priority is to look out for their interests. I let them know we are a team, and I need their help. As long as I keep them informed during the process, I can be successful in maintaining appropriate communication.
While both roles share common legal principles, the focus and approach differ significantly. Attorneys making this transition must adapt to new approaches, develop specialized skills, and navigate new ways to effectively communicate with corporate clients. Ultimately, the transition offers an opportunity for the defense attorney to have a more thorough understanding of the complexities of personal injury law so we can better represent all of our clients.
If you have questions about this article, please contact Kathleen Smith (ksmith@setlifflaw.com) at 804-441-8076, or Steve Setliff (ssetliff@setlifflaw.com) at 804-377-1261.
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