Some Thoughts on Trask's "Cause Lawyer" Post
Readers of this blog know that I'm a big fan of Andrew Trask and his blog Class Action Countermeasures. He has an interesting post today about what he calls "Cause Lawyers" (and what I generally call "true believers"): plaintiff lawyers who bring class actions to advance a social agenda rather than getting rich. They often work for non-profit organizations for low wages. Their job satisfaction comes from changing the behaviors of their target defendants in ways that legislators or regulators either cannot or will not.
Andrew is absolutely right that these lawyers are distinctly different personality types from what he calls "entrepreneurial class counsel," i.e., those who bring class actions to get rich. He cites an article that paints the true believers as having a binary world view (us/them, right/wrong) and offers some advice for negotiating with them.
I think it's far too easy to ascribe such character traits to "Cause Lawyers," and I wanted to offer some nuance based on my experience with them. I actually like and respect most of the "Cause Lawyers" I've dealt with over the years, and have been able to forge some beneficial relationships with them.
To begin with, Cause Lawyers are usually very bright. Because they operate in a particular field that interests them, they usually are experts in that field. They likely know the cases, regulations, and history of regulation in that field better than you do. And believe me, they know the players. They likely have met with the relevant government officials repeatedly, urging them to action. Do not underestimate a Cause Lawyer adversary.
Although Cause Lawyers have an idealistic streak, for sure, they seldom get to indulge it in practice. They work for organizations that have limited budgets and often very broad agendas. They will fight hard to achieve a favorable result, but they also understand that if they can achieve something less than complete victory through a deal with your client, they should take that and move on to the other cases in their "quasi-legislative" agenda.
Cause Lawyers are just that: lawyers. They know the strengths and weaknesses of their case. They often are pushing at the very edge of the law -- they're very creative -- and they understand that lawyers in that position have a substantial risk of losing, at either the trial or appellate level.
Cause Lawyers are also people. They respect adversaries who treat them as equals, speak frankly, and live up to their commitments.
In short, Cause Lawyers can be very practical in negotiations, but you have to understand where they are coming from.
Here are some of my thoughts on litigating against and negotiating with Cause Lawyers:
1. Understand your client's motivations and objectives. The Cause Lawyer has sued your client for a reason: she wants at least a change of your client's behavior, maybe more. You first need to understand your client, why it conducts its business as it does, what it might be willing and/or able to change within its overall business objectives, and what changes it would be unwilling to make and why such changes are unreasonable.
2. Get to know the Cause Lawyer. I find that it's important to sit down early with the Cause Lawyer. I want her to get to know me as an honorable adversary whom she can trust to do what I say I'll do. I want to listen very carefully to what she wants to achieve with the litigation (always thinking in the back of my mind of possible mutually-acceptable compromises). I want her to understand that there is a rational business reason for my client's behavior and that it is a good corporate citizen. And I want her to understand the strength of our factual and legal defenses, as well as that continued litigation is going to require a significant commitment of the plaintiff's limited resources.
3. Be Creative and look for a way for both sides to shine. Cause Lawyers may be idealists at heart, but they understand that change comes incrementally. If they can have an industry player cooperate with them on a policy, they understand that its easier to get the rest of the industry to follow. Often there is a win-win compromise to be reached with Cause Lawyers where your client can receive kudos for being the first to tackle a thorny public policy issue.
4. If it becomes apparent early on that a reasonable compromise that makes business sense is simply not possible, make good on your promise of take-no-prisoners litigation. This is in keeping with the maxim that the Cause Lawyer should be able to trust you to do precisely what you say you'll do.
The Cause Lawyers I have dealt with, for the most part, have been practical lawyers with a policy agenda who understand that businesses have legitimate interests and that litigation is a costly and unpredictable way to legislate policy change. Often, they tell me, corporate defendants respond to Cause Lawyers' suits by digging in their heels early on, without taking time to understand that in many respects, the suit or demand letter is really the organization's attempt to get the company's attention and obtain a seat at the decisionmaking table.
I worry that painting a picture of Cause Lawyers as "hyper loyal" or "bipolar" (us/them) -- as does the article Andrew cites -- will feed into some defense lawyers' inclinations to dismiss the importance of engaging with Cause Lawyers early in the process, when real progress can be made and catastrophe can be avoided.
