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File Flogging is Frustrating

Before switching to representing patients, I was a malpractice defense lawyer for over 30 years. This gives me a certain nose for defense lawyer bulls***.

Recently, I received a motion in one of my state law cases. Of the three issues presented, one was clear cut and could easily have been resolved with a call – as I had requested of opposing counsel. The other two basically sought an advisory opinion from the court. The whole exercise was clearly pointless.

If the motion did nothing to help that defendant, what was the logic of filing it? Perhaps it was just posturing – showing that they are tough defense lawyers. No stone unturned and all that silliness. But any decent defense lawyer should appreciate the futility of such gestures. Efforts of that sort are usually ineffective, and often counter productive.

Posturing is a nice explanation. Fee generation is a more plausible one. Some insurance company paid good money for the research, drafting and other handling of this needless filing. In my days as a defense lawyer, I would have called it “flogging the file” (or something more graphic). A lawyer in my firm pulling such a stunt likely would have incurred my ire.

Unfortunately, hourly rate arrangements are a powerful incentive for such abuse. That’s obvious. Of course, not all defense lawyers fall prey to such temptation. Some have the integrity to do only that work which is reasonably necessary for the representation of their clients. Doing so requires a measure of discipline which all lawyers need to have.

For all their analytic tools, I am always surprised that insurance companies don’t do a better job of policing such errant conduct. It’s not a matter of doing the right thing; it’s simple dollars and cents. Companies would make more money by not paying for unneeded lawyer efforts.

Being on the other side of file flogging is frustrating. Knowing exactly what it is does not make it any easier. Litigating cases is hard enough without have to deal with peripheral matters having nothing to do with the actual case issues.

I hate wasting time. I doubt I am alone in that view.


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