This was a lawyer’s worst nightmare.
One screw-up after the next ranging from missed court conferences, failing to file discovery responses in compliance with court-ordered deadlines and even worse, having the case dismissed for failing to file a note of issue after being served with a 90-day demand. This New York City plaintiffs’ law firm (then known as Napoli, Kaiser & Bern) was having a really bad day…okay maybe a bad couple of years.
To make matters even worse, the lawyers handling this medical malpractice case were less than truthful with the plaintiff. After the court dismissed the lawsuit for repeated failures to comply with court orders, the plaintiffs’ lawyers simply told their client that the lawsuit no merit and should be voluntarily discontinued. Not knowing that the lawsuit had already been dismissed, the plaintiff signed a stipulation of discontinuance and the case was over.
Now, fast forward one year. The plaintiff discovers the truth about his lawsuit—his lawsuit was dismissed by the court based upon the seeming incompetence of his lawyers and repeated acts of gross negligence. A legal malpractice lawsuit ensues against the plaintiffs’ former lawyers and eventually, the case is settled for seven figures (just Google, Scarborough v. Napoli, if you want more of the juicy facts about this case in Oswego County). The plaintiff finally gets the justice he deserves.
Not the Lesson in Life you Expected
I know what you’re thinking. The lesson from this case (you think) is that you should do your best to comply with court-ordered deadlines for discovery, file the note of issue when you’re supposed to and always be honest with your client. Well, not exactly, but yes, you should do those things.
While handling the legal malpractice lawsuit, it seemed almost difficult to comprehend how the Shyster Lawyer was even practicing law. Just one major screw-up after the next and then, after two years of mind-numbing mistakes, the Shyster Lawyer attempted to hide the truth from his client (not a good idea). The depositions in the legal malpractice case offered no answers: the Shyster Lawyer was unfamiliar with basic procedure in New York almost to the point that it was difficult to comprehend how he passed the bar exam.
But there was just one thing that no one could figure out: the Shyster Lawyer had a past history of success with jury verdicts. Not just a little success—big verdicts in medical malpractice cases throughout New York. Yes, the kind of results that any plaintiffs’ lawyer would be proud of. This was intriguing. Did the Shyster Lawyer simply have a single bad day in Scarborough v. Napoli? That seemed to be the case…until the truth was revealed.
A Shocking Discovery about the Shyster Lawyer
For perhaps no other reason than curiosity, I set out to discover how the Shyster Lawyer was so successful in getting great jury verdicts in other cases, but seemed so utterly incompetent in one lawsuit. So, I got the trial transcripts from several of the other lawsuits and set out to find out how this plaintiffs’ lawyer was somehow getting one fantastic jury verdict after the next. The answer was not what I expected.
The trial transcripts from the other lawsuits revealed one common theme: the Shyster Lawyer was thoroughly unprepared for just about every aspect of the trial ranging from the direct examination of his key medical experts, cross-examination of the defense experts and closing argument. As if that wasn’t enough, the Shyster Lawyer did not have a basic grasp on the rules of evidence or New York’s procedural laws. Yet, even with very difficult facts and facing the best defense lawyers in the State, the Shyster Lawyer was hitting a home run with one big jury verdict after the next.
Yes, the Shyster Lawyer was somehow moving from one courtroom to the next with tremendous results, even with little preparation and a tenuous grasp on the law. So, you ask, what is the valuable lesson in life from the Shyster Lawyer?
The Difference between Winners & Losers
99% of plaintiffs’ lawyers would never have accepted these cases and yet (call it blind luck if you want), the Shyster Lawyer racked up one jury verdict after the next. And, yes, luck was part of it, but if we stopped there, you would not be giving nearly enough credit to the “Shyster Lawyer”.
Rather than listen to the naysayers who told him that his cases sucked and he was sure to lose, the Shyster Lawyer disregarded their “advice” and just moved forward to trial. Yes, the Shyster Lawyer deserves credit that no one to this point would give him: HE TOOK ACTION.
The Shyster Lawyer was facing down some of the preeminent defense lawyers in the State with cases that barely withstood defense motions for summary judgment. But rather than blaming the terrible facts of this cases and the long odds of winning (75% of malpractice trials are won by the defense, according to New York’s Office of Court Administration and the national rate of defense verdicts is even lower), the Shyster Lawyer threw caution to the wind and the results were stunning.
The Lesson for all of us from the “Shyster Lawyer”
So, what does this mean for you? Take crappy cases, don’t prepare for trial and just hope for the best? Not quite. That is a roadmap for the destruction of your law career.
But let’s face one brutal fact: in small-town America (and perhaps everywhere), the lawyers are keen on talking a big game. You hear the big-talkers everywhere, but especially in bar-rooms after they are primed for big-talk with liquor and a receptive audience of other big-game talkers and dreamers. Yes, it’s a sad fact that lawyers are big-game hunters when it comes to talking, but 98% of the time, that’s all it is, TALK.
How many times have you heard another lawyer tell you that he’s going to change his practice to become the big-time “trial guy”? If you haven’t heard this, just walk into a bar near a courtroom in your county and you’re certain to over-hear the big talkers at the bar. But the sad reality is that IT’S JUST TALK.
Hockey legend, Wayne Gretzky, once said that, “There is a one hundred percent chance of missing a shot that you don’t take.” To his credit, the Shyster Lawyer adopted Wayne Gretzky’s motto with the philosophy that: you can’t win a case that you don’t take to trial.
The Shyster Lawyer gets the Last Laugh
Back in the lawyers’ lounge of the courthouse, there are few kind words for the Shyster Lawyer. The criticism is harsh and never-ending: “he’s clueless”, “he can’t find his way around a courtroom to save his life”, or perhaps, “he’s just dumb lucky”. And maybe the naysayers are right, but guess who’s getting the last laugh?
The Shyster’s Lawyer’s bank account is fat. While the other lawyers are fighting for scraps, the Shyster Lawyer is laughing all the way to the bank. The Shyster Lawyer cares little about the criticism of his peers—he knows that his trial calendar is full for the next year and win or lose, he’s going to be just fine.
The Shyster Lawyer is having his cake, and eating it too, by taking action and not worrying where the chips will fall. As the author, Grant Cardone, says, “The successful are willing to take gambles—to put it all out there and know, regardless of the outcome, that they can go back and do it again.” (by the way, Grant Cardone’s book, The 10X Rule, is an absolute must read).
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