The Hee-Bee Jee-Bee Test

I am going to lower my guard this evening and give away a million, no make that a billion, dollars worth of legal advice. The topic? A new standard for lawyers to use when selecting clients. Call it the Hee-Bee Jee-Bee Test.

What is that?

I am talking about the client who simply gives you the creeps. You know the type. The injured, angry, pissed off, ornery cuss of client who has been waiting, hoping, praying for a lifetime for someone to commit a tort, any tort will do, against them. Armed with this tort, this anger addicted fiend of a plaintiff will demand the scortching of any Earth within one thousand miles of their rubbed raw hang nail. If you don't entertain every morbid fantasy they advance, expect a grievance to the bar and endless angry letters and complaints. This client has been waiting forever for something to blame their failures on. Pity the poor defendant who crosses their path. And pity the lawyer who champions their case. These clients, my friends, will suck the life out of you.

Don't tell me you don't know what I am talking about. Each year the bar belches forth a new class of lawyers; we add them faster than they die off. Lawyers need cases or controversies to survive. As the number of lawyers grows, plaintiffs' lawyers reach ever deeper into the cesspool of human need to find clients. Is it any wonder that the courts are filled to overflowing with litigation that would better be treated with Prozac, Thorazine or some other radical therapy?

A lawyer's best friend is not an advertisement; it is his or her credit line -- the necessary vehicle to survive the periodic lull in cases of merit. Lawyers without credit lines make mistakes. They dive at cases presented by histrionic monsters, sociopathic ghouls and clients who have waited a lifetime for some cause, some controvery, that would make the entire world stop for a moment to note just how special, injured and aggrieved they are. Lawyers mistakenly dive at such clients because a payroll must be met, a bill must be paid. Buy such a client and watch your life swallowed by the sort of howling ghosts suitable only for Dante's Inferno.

So herewith a new test for evaluating clients. Call it the Hee-Bee Jee-Bee Test. What are the Hee-Bee Jee-Bees? Simply this: A sense that this client is trouble, their need infinite, their anger boundless. The client is of a sort that expects the President of the United States to answer their letter. They write to their Governor requesting relief. They request that a Congressman filibuster the nation to a standstill to assuage their pain. In sum, they expect the world to stop simply because they are angry. Such a client knows no boundaries. Avoid them like the plague. Better debt than pissing into the infinite maw of sociopathic need.

The law, for all its shortcomings, is an an exacting discipline. Proximate cause teaches us the limitations of foreseeability. Doctrine limits expectations. The angry client sees not any limitation to their hopes and claims. Try explaining the concept of compensatory damages to a mama's boy persuaded that he's entitled to millions for a garden variety tort. C'mon, fess up, plaintiff's bar, we have handled scores of these files, each sucking us dry.

I am a plaintiff's lawyer. I am a succsessful plaintiff's lawyer. But, perhaps this is too much to assert -- I am an honest plaintiff's lawyer. I favor as a matter of policy liberal rules requiring a plaintiff to pay sanctions for a claim brough without merit. A plaintiff who imposes unneeded expense on a defendant should reimburse the defendant.

Herewith some simple suggestions:

1.  Liberalize the use of independent medical examinations for plaintiffs claiming emotional distress. Let's see whether the defendant's conduct caused injury, or whether the plaintiff was a walking wound wainting to inflict itself on the first person he or she could tag with a suit.

2.   Expand Rule 11 type sanctions on lawyers. Make lawyers accountable for the cases they bring. If a lawyer discovers a claim lacks merit, why should the lawyer advance it at the defendant's expense?

3.   Make it easier for lawyers to withdraw when they discover that the client's claims lack merit. Many lawyers now fight bad cases to the end as a matter of defensive lawyering. Why shouldn't a lawyer be permitted to withdraw once he realizes his client is playing with something less than a full deck?

We are our client's advocates, but we are also officers of the court. I say take greater pains in avoiding clients whose personal "issues" far transcend the case or controversy they implore you to take. Why? It is wasteful of your time and talents to serve the irrational anger of the sociopath. Some of the most expensive mistakes I ever made came after accepting a retainer from a client who gave me the Hee-Bee Jee-Bees -- that gnawing sense that the person sitting across from me was a resident of a foreign world governed by anger and paranoia.

It is better to be in debt to a bank than to owe your time and skill to a client who whould better be served by a psychiatrist.

Comments

[mythago]

As the number of lawyers grows, plaintiffs' lawyers reach ever deeper into the cesspool of human need to find clients.

I disagree that human need is growing any slower than the number of lawyers.

Otherwise, I heartily concur.

[Maren Chaloupka]

Norm, I am very much enjoying your postings on the Sociopathy Project. I'm getting better at recognizing potential "problem children" who fit the description you provide when they first appear in my office rather than later. But, having been on the receiving end of unsuccessful but costly Rule 11 motions, I respectfully disagree with the suggestion that we expand the use of this sanction.

In the case of one of the Rule 11 motions to which I was subjected last year, the sociopath was not my client, but the opposing counsel - - a deeply obsessive creature who views cases as not Plaintiff vs. Defendant, but as a holy war of Defendant's Counsel vs. Plaintiff's Counsel wherein the actual parties are an irrelevant formality. I had to get my own lawyer to defend the motion, and I spent about 70 hours of my own time litigating the motion.

My offense? Bringing a novel cause of action (after 20 hours of research to satisfy myself that a good faith attempt should be made to expand the law) for a destitute client, whom the existing law has screwed horrendously.

The motion was overruled, as were Rule 11 motions that were cursorily tacked onto the end of summary judgment motions in other cases - - which I had to take time to oppose and address, or else flout the court's authority to impose the sanction. Just as it is far easier to make an accusation than to defend it in a criminal case, it's easier for a civil defense lawyer to fire off a Rule 11 motion than it is for the plaintiff's lawyer to fend it off. While there are snippets of law suggesting that bringing a meritless Rule 11 motion is itself sanctionable, judges in my experience are more inclined to simply deny the motion under a rubric of "lawyers are fighting, I'm not getting involved" without considering the costs incurred by the person who had to defend the motion.

Granted, my point of view is biased by my personal experience; but I fear that expansion of the sanction could chill lawyers who may genuinely be trying to develop the law for a worthy client. That's my worry.

[Norm Pattis]

Maren:

Good point. I think sanction in your case were in error. But I guess that is small consolation.

Norm

[Deoxy]

Maren:

Apply your comments regarding the ease of filing Rule 11 compared to the cost of defending against it to ALL LITIGATION. A little chilling would be a VERY good thing.

Only cases of actual and substantial merit should be allowed. Anything less should be sanctioned. EVERY TIME.

[Ben Glass]

One thing that we plaintiff's attorneys don't do a very good job at is eliminating the attorneys who give the rest of us a bad name. In my 20 years of practice I've found that most of the attorneys I've run into have been good, hardworking folks who worry about the same things I do: Who will pay the rent, the mortgage and the college tuition. We should be doing a better job of educating the public on how they can do a better job of choosing the ethical, quality lawyers in their community. My small effort is at www.TheTruthAboutLawyerAdvertising.com

[Maren Chaloupka]

As to Deoxy's comment - - what will be the standard by which it will be determined whether a case is of "actual and substantial merit" at the outset of the case, without discovery?

I have no idea whether Deoxy is an attorney. I do know that even in cases that would seem to have serious "actual and substantial merit" at the outset, the reflexive response of the insurance/corporate defense bar is to deny, deny, deny. Defendant driver ticketed for DUI after running stop sign and slamming into other car? Liability denied. Dialysis patient left unattended for six hours while she bleeds to death? Liability denied. Police officer leaves unrestrained prisoner in patrol car with keys in car and gun in trunk? Liability denied.

Will the demand for cases with "actual and substantial merit" at their outset include a requirement for defenses with "actual and substantial merit" at their outset, presumably with sanctions for forcing plaintiffs to expend time, money and legal effort to overcome defenses raised just for the sake of raising them?