August 7, 2015
Litigation like vegetables? Yes, it can be that way.
Think about the salad. Onions can be peeled away one layer at a time, tomatoes you just slice through the middle. Litigation can be proceed in both ways, for each plaintiff and defendant.
As a plaintiff’s counsel, finding a case that you can slice down the middle like a tomato — putting an end to it quickly and in an advantageous way for your client — can be gratifying. Our firm, for example, does a significant amount of fee-shifting litigation in which when the plaintiff wins — even a small victory — the cost of attorneys fees and expenses (all of them) falls to the defendant. In such cases, frequently the defendant wants a quick settlement to avoid open-ended liability for their wrong-doing. Other times, the plaintiff has such a strong case, the mere demand or filing of suit will bring the defendant to the table to settle. Finally, sometimes the power of the story in the media can convince a defendant to quick bring an end to a big battle before his misdeeds are displayed before the world.
Other times, a plaintiff has to slowly and methodically convince the defendant of the strength of his position — like peeling an onion back one layer at a time. Layer by layer, and sometimes cut by cut, the defendant realizes that the case is just going to get worse for him each day, each motion and each deposition that passes. Eventually the defendant relents, but it can be hard work; some defendants take a lot of convincing. “Onion” litigation is the most gratifying when the Judge is moving with the client, and motion by motion, ruling by ruling, lays open the defendant to the plaintiff’s claims. The penultimate “onion” strategy for a plaintiff is a (occasionally surprising) motion for summary judgment, or maybe partial summary judgment on liability only that makes liability — and potentially open-ended liability — a foregone conclusion to the defendant. That frequently is enough to wrangle a strong settlement. Some onion cases, however, require that you take them all the way through trial and even layers of appeals.
From a defendant’s perspective, a quick end to litigation — slicing open the tomato — is a motion to dismiss or a motion for judgment on the pleading at the commencement of litigation. All the plaintiff has done is file the complaint (the initial lawsuit paperwork). In response, the defendant says “this is not worth the paper it is written on,” and successfully moves to have the entire case thrown out before the first punch is thrown. That’s a tomato, cut right down the middle.
Finally, we look at defendant’s onion, the slow use of motion work and discovery to peel back the layers of the plaintiff’s case down to its rotten core. This is most typical in cases involving insurance defense. By slow, methodical work, the defense counsel makes the plaintiff prove their case, or establishes that he does not have one. Sometimes this strategy can backfire on defense counsel, running up costs for the client — or indemnitor — only to show the strength of the plaintiff’s case and counsel. In any event, hard, slow, committed defense work can undo what at first seem to be strong plaintiff’s cases. Because of the cost and risk of litigation, the onion strategy typically works best for defendants, especially those with insurance carriers funding the defense or those defendants with deep pockets. Onion defenses can last through multiple interlocutory appeals and appeals all the way through the U.S. Supreme Court.
The moral to this story is that litigation — strategically planned and properly pursued to its end — can be successful as either an onion or a tomato. But onions typically are a lot more expensive.