The role of passion in the plaintiff world

In reflecting on 47 years of practice, I have observed that a clear key to success is the passion that we, as lawyers, bring to our clients’ cases. This passion permeates our entire approach, from the selection and acceptance of the client to fighting through appeals that may last years. I can still remember when my senior partner, Richard Gerry, called me from Alaska in 1989 after the Exxon Valdez ran aground and told me that we were being asked to represent fishers in Alaska. We both felt horror when hearing about that disaster and we had an intense passion to try to right that wrong – at least to the extent we were able. We abandoned all caution and jumped in with both feet. Little did we know the case would last 26 years, including numerous appeals to the Ninth Circuit and eventual appearance in front of the U.S. Supreme Court. Even though Mr. Gerry did not live to see the final conclusion of that case, he never looked back.

A few years ago, I took on a case against the smokeless tobacco industry, which had never been sued in California. Many lawyers in my firm discouraged me from taking on the case because prior cases against the smokeless tobacco industry had been almost universally unsuccessful. But it was one I felt passionate about. As is our practice, I went to the client’s home to meet with the family and learned what they had been going through. Their sense of loss helped drive me. It took over a year just to investigate and analyze the data and to draft a complaint that we knew would survive challenges. Fortunately, we were able to get a just result.

More recently, my partner, Jeremy Robinson, took on Amazon in a product liability case that he suspected he would lose at the trial court level. But he believed in the case and felt strongly that Amazon was unfairly avoiding responsibility for harms it was causing. On appeal, he conveyed that passion and convinced the court to disagree with numerous other decisions exonerating Amazon and, for the first time ever, to establish strict liability in California for an online marketplace.

There have been many times when I have met with new clients who had been turned down by other law firms and still made the decision to represent them when others, perhaps wiser and more experienced, declined to do so. What drove me in those decisions was the passion I felt for the client. I found, time and time again, when you truly feel passion about your client’s cause, you can succeed. A corollary to that is, if you meet with a new client and you don’t feel passionate about their case, it is better to decline and let another lawyer get involved who may feel differently. We have often heard the axiom that practices are defined by the cases you reject. Sometimes that can be difficult, but if you truly don’t have the passion for the client, you’re doing them a favor by rejecting their case.

When you have passion for your client’s case, you think about it constantly and you do a full court press. Your opposing counsel is constantly reminded of your presence and recognizes that this is a case that is important. I had a wonderful mediator, Craig Higgs, who told me years ago that the passion a lawyer brought to their case made the biggest difference in the end result.

I have one partner who, until a personal connection with the client is developed, is not engaged. Once developed the passion ignites and I have no doubt a tremendous result is achievable.

I have repeatedly seen the excitement in lawyers when they care about their cases. Mark Davis, past president of the Inner Circle, lights up when he talks about clients he represents. When he tells you about his clients, he brings excitement and a fascination that draws you into his perspective world and it’s hard to imagine him not prevailing before a jury.

In law school, they teach us to master the law. We are then taught in practice to master the facts. What is not often taught is to follow our passion. It is important to listen to that inner voice when selecting a case and to ask yourself, honestly, how you feel about it. If you care deeply, then jump in and your client will be well served. If not, let them seek other counsel who may feel that passion. Follow this and you will almost always make the correct decision.