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Pick a Fight with Me and Pick a Fight with My Brother?

Last month, I took exception to a Drug and Device Law Blog post and wrote a semi snarly retort on the topic of the confidentiality of discovery documents.

Bad move. The Drug and Device Law Blog fired back a response pretty much took my post and beat me over the head with it. Adding insult to injury, they did it with good writing and good humor. I hate it when the bad guys are good and funny. It makes them seem almost human, an idea that fits in poorly with my worldview.

I thought they got some substance just dead wrong and there was lots of room for a good counterattack. But to find the time to write a cogent, witty response to rival theirs? They spit that response out in an hour; I bet. It would take me all day to come up with something and it still would not have been as well written.

Thankfully, my brother jumped in to stand up for me. My brother? Yes, for our purposes here, my brother. Justinian Lane stepped up and wrote the response I wanted to write (link since deleted, unfortunately). Even better, actually.

So instead of beating this topic any further, I’ll comment off-topic to the core issues in this debate and address another fascinating point Justinian makes about the economic disparity between plaintiffs’ lawyers and defense lawyers:

In DDL’s first post, they made a quip about plaintiffs’ lawyers buying Maybachs, and now they’re complaining that “plenty” of plaintiffs’ lawyers have private jets. While I don’t think that the authors of DDL are green with envy over the financial success of a few plaintiffs’ lawyers, plenty of their readership is. By and large, defense lawyers go to better schools than plaintiffs’ lawyers, earn better grades, write better briefs, and I’ll say it – are better lawyers. And they know it. It therefore irritates them to no end that lawyers who they perceive as being inferior to them are more financially successful than they are.

I don’t know that defense lawyers are better trial lawyers than plaintiffs’ lawyers in mass tort cases. Plaintiffs’ lawyers get more reps because, typically, plaintiffs’ lawyers have more trial experience. A lot of great mass tort defense lawyers can go a career without trying a case. I’m not saying they can’t do it effectively when called upon but, like with most things, experience counts. Pharmaceutical companies hire great trial lawyers but if cases are remanded all over the country, they don’t have as deep of a bench as plaintiffs’ lawyers.

But these mass torts are often won and lost in most cases in trenches of discovery, in motions’ practice, on appeal, and for burying relevant documents. (I’m kidding on the last one. I think.)

Typically, defense lawyers are better at all of these things than plaintiffs’ lawyers. They are better writers, more tenacious when it comes to the details, and, I venture, smarter.

A ridiculously overly broad generalization. But still true. And, honestly, they usually write better and more informative blogs too, particularly in drug and medical device cases.

(Although, in our sort of defense, a part of the problem is that plaintiffs’ lawyers use blogs to pander for cases so they get off track of real substance.  I’m guilty of this, too, of course. You can almost bet on me following up on this blog post with a “3M lawsuits, please give us a call” post. Bob Woodward would lose credibility, too, if every third book was a plug for George Foreman grills or something.

There are many skilled defense lawyers who would make outstanding plaintiffs’ lawyers. But the switch is hard.

First, there are the golden handcuffs of how handsomely good defense lawyers are paid. But an even larger psychological hurdle is the Kool-Aid pharmaceutical lawyers swallow. It is amazing how people get thrown into an environment and get Patty Hearst brainwashed.

There are a lot of Ivy League lawyers who supported ? Beto Rourke and went to law school dreaming of supporting liberal causes. But they became pharmaceutical defense lawyers because they wanted to cash in their credentials, pay back their student loans, and so forth.

Today, these lawyers are still left of center on just about every political issue… except for tort issues. What is striking about this phenomenon is the lack of self-analysis by otherwise politically left of center pharmaceutical defense lawyers? There seems to be a little inner reflection of how coincidental it is for them to have only a single conservative view.

Don’t get me wrong. There are plaintiffs’ lawyers who are the same way, Republican party platform all the way except tort reform and restrictions on personal injury lawsuits. Truth is, we are all guilty of this thinking at moments.  We view with scorn the sins of our opponents/enemies but would defend our own who committed the same transgressions. That is life, I guess. I just find it interesting.