A defense lawyer has penned an article in Texas Lawyer purporting to reveal the secrets of plaintiff employment lawyers.  You can see the article at his blog, hr risky business.  He assigns amoral motives to plaintiff lawyers and accuses us of unsavory tactics.  Stating that he formerly worked for a plaintiff employment firm, he claims that his knowledge of the "enemy’s" tactics help tighten his "counter-attack" today as a defense lawyer. 

I cringe a bit at hearing a lawyer using those terms in a public forum to describe litigation.  We are not "enemies."  We do serve opposing sides.  But, I have faced an actual enemy, one who sought to kill me and my fellow soldiers everyday we served in Iraq.  A lawsuit is nothing like war and should not be.  Indeed, speaking as a plaintiff lawyer, most plaintiffs reserve some residual amount of respect for their employer.  Even when wronged, they cannot totally eject all feelings for someone they have served for 10, 15, or 20 years.  

The article leaves out the rest of the story.  For example, the author describes an employee who complains about discrimination when she is about to be fired.  In the author’s belief, she submits her complaint only to save her job – at the suggestion of her clever plaintiff lawyer.  The plaintiff lawyer stays in the "shadow" to help the employee.  At the clever lawyer’s urging, the employee copies everyone in the chain of command on her email – so she can argue later that anyone who fired her knew about the email.  The defense lawyer mentions rightly that retaliation is easier to prove than discrimination.  By staying in the "shadows," the conniving plaintiff lawyer is thus able to create a retaliation lawsuit. 

But, the author’s connection to reality ends there, I am afraid.  He leaves out the rest of the story.  He leaves out  that the employee who suspects she is being treated differently because of her gender probably agonized for weeks or months over simply seeing a lawyer.  That she called several lawyers, all of whom declined to meet with her.  He leaves out that she only came to believe she was being treated differently due to her gender after one or two trusted co-workers commented to that effect.  Only after co-workers told her it did not make sense that she was being disciplined for that particular offense.  The author leaves out that she came to this conclusion after she personally observed two or more male employees avoid scrutiny for the same or similar offense. How she has cried after work for days on end.  The defense lawyer leaves all this out. 

But, the most glaring omission from his Texas Lawyer article is that as trial lawyers, we have to zealously advocate for our clients, yes.  But, we must still remain officers of the court, able to talk with the opposing counsel.  We have to work out mundane matters even with – and especially with opposing counsel.  We can talk with opposing counsel, but not with "enemies."  Those of us who have faced actual enemies appreciate the difference.  In Iraq, I would never have called the insurgents to set up a time to review documents or depose their commanders.  The author does not appreciate the difference between true war and a lawsuit.  It is beliefs like his that "clog the courts." Such beliefs benefit no one.