A Message to Opposing Counsel

Counsel,

If you landed on this page, it means you represent the other side in one of my cases. Thanks for visiting my website. I look forward to working with you.

At the outset, I’ll let you know that while standing up for people who were harmed by others is the driving force behind this firm, another reason why my practice is thriving is that I make sound business decisions. To clarify, I only take on cases I think I can win at trial given that my business model is to work them under contingent-fee arrangements.

With that in mind, if you think my case has problems, you should do your client a solid and have a talk with me about the merits. If you can show me that my clients’ cases are unlikely to survive summary judgment, then I will advise them to dismiss their claims and try to move on with their lives. And why wouldn’t I? Unlike you, I don’t get to bill myself out at a $400+ per hour clip and collect a monthly salary or partnership draw. Instead, I don’t get paid unless I recover money for my clients, therefore it makes all the sense in the world for me to keep an open mind and absolutely no sense for me to prosecute claims destined to fail.

That said, if you merely dispute my clients’ factual allegations without providing any corroborating evidence (e.g., sworn statements, emails, phone records, etc.) you will not put me in a position to advise them to abandon their claims. After all, those sorts of unsubstantiated contentions would only confirm the existence of fact issues that preclude summary judgment.

If I don’t find your defense theories persuasive, I will work this case up and prepare to try it.

Please understand I’m neither puffing nor posturing. If you ask the lawyers I go up against, I have little doubt they would agree those aren’t things that I do; unlike some members of the plaintiffs’ bar, I value my reputation as someone with unimpeachable credibility.

But I’ll confess I wasn’t always so bullish about going to trial. In fact, when I left the biglaw firm (I’ll tell you which one if you ask) to hang a shingle in 2009, my litigation strategy was to open a frank and candid discussion with the other side’s lawyer about the strengths and weaknesses of the case under the naive assumption that reason and rationality would carry the day and we would work hard to resolve our differences on our own.

That approach proved to be short lived. My experience working hundreds of meritorious cases, coupled with what I know about how your side trains its lawyers, has taught me that more often than not your end is (a) way more interested in billing your clients by the hour than in working to find a middle ground, and (b) incredibly unlikely to make a fair settlement offer unless you truly believe the only alternative is going to trial and explaining your clients’ conduct to a jury.

Please understand I am not denigrating you. I understand that in the current litigation climate your client expects you to always “play hardball.” I understand your firm’s antiquated business model evaluates you based on the number of your billable hours. But the sort of scorched-earth litigation tactics your wrongdoing clients and your firm’s executive committee have pressured you to embrace have forced me to recalibrate my own litigation strategy.

Accordingly, I will assume an amicable resolution isn’t possible and that litigating this case to verdict is the only way for me to vindicate my clients’ rights. Which I’m happy to do; as a contingent-fee plaintiffs’ lawyer, I embrace the risks inherent in trusting the adversarial process and I’m accustomed to betting on myself and my clients rather than trying to negotiate with adversaries who won’t cede an inch.

If my assumptions are incorrect and your client wants to do the right thing, a good start is to make a settlement offer. If you make a reasonable one, I will advise my client to give it serious consideration.

But before you reach out to me with an offer, I want there to be no misunderstanding or miscommunication regarding how my firm approaches, responds to, and conducts settlement discussions, or the terms which any settlement must include.

JRW Law and its clients will:

  • Consider all reasonable offers.
  • Allow the defense to speak directly to our client.
  • Provide any information regarding the case requested by the defense, within reason, during settlement negotiations.
  • Respond within 48 hours to a defense offer.
  • Agree to a confidentiality agreement and tax indemnification, as permitted by law.
  • Always conduct ourselves with the highest degrees of professionalism and civility, and not resort to emotion, anger, accusations, or ad hominem attacks.
  • Unalterably entertain NO settlement offers until the Court orders us to mediate or the jury has reached its verdict if the defendant or its lawyer resort to emotion, anger, accusations, or ad hominem attacks.
  • Leave immediately if the defendant leaves a mediation or settlement conference.

JRW Law and its clients will NOT:

  • Receive, entertain, consider or respond to any defense offers in the form of a structured settlement.
  • Permit its clients or its clients’ claims to be belittled in any way by the defense. If the defendant or its lawyer belittle our clients or our clients’ claims in any way—including referring to them as frivolous or baseless—we will unalterably entertain NO settlement offers until the Court orders us to mediate or the jury has reached its verdict.
  • Pay any portion of mediation costs unless the other side first makes a reasonable settlement offer or the Court orders us to.

Additional Considerations:

  • The amount of settlement must be paid in full into the hands of plaintiff’s counsel no later than 30 days after the settlement date. Any payment received or tendered after the 30 days must include interest at the rate of 12 percent per annum.
  • If our side pays for any portion of a mediation that ends in impasse, JRW Law will unalterably entertain NO settlement offers until the jury has reached its verdict. The mediation is the final opportunity to conclude the case before the jury has reached its verdict.

On a final note, I’m hopeful your end will do the right thing and work to find a middle ground so the parties can resolve their differences without expending scarce judicial resources.

But if not, my client and I stand at the ready to work up the case, beat back summary judgment, and litigate to verdict.

Best,

Josh Williams
Lawyer