How Defending Law Firms Shaped This Trial Lawyer’s Approach
Some litigators have a long-winded way of summing up just what it is they do.
Not Bethany Kristovich of Munger, Tolles & Olson.
“I help solve the problem,” she told me when we spoke by phone last week. I reached out to Kristovich because she handles an interesting mix of trial and class action work. The majority of that is in what she calls “crisis” cases—think of Munger’s work settling claims on behalf of MGM Resorts International stemming from the 2017 mass shooting in Las Vegas or defending PG&E in wildfire litigation.
But about a third of Kristovich’s docket involves representing lawyers and law firms—an area where she sees the exposure growing and the prospect of more trial work increasing.
“I remember when I started my career a $20 million claim against a law firm was massive,” said Kristovich, co-chair of the firm’s professional liability defense group. “Now I see nine-figure claims, if not 10- or even 11-figure claims against law firms, at least once a year.”
Kristovich says that a trial lawyer’s ability “to parachute in” and master a subject is useful when defending lawyers. “I know the rules governing lawyers: What's a conflict? What's not a conflict? What are the disclosure requirements? But every case arises in a different area,” she said. She said she’s had cases pop up in contexts varying from pharmaceutical pricing to tribal lending. She said, as it is in trial work, oftentimes representing lawyers involves taking a subject matter which on its face can seem dry and making it human.
How does Kristovich’s work for lawyers and law firms inform the rest of her practice? We put that question and others to her when we spoke last week. The following has been edited for length and clarity.
Litigation Daily: How do law firms compare as litigation clients to your others? The one thing I've always heard about lawyers and law firms is that they're even more averse to going to trial than would be the typical litigant. Do I have that right?
Bethany Kristovich: I would say yes and no. Lawyers—including when they’re clients—they understand the risks that go into trial. And there are significant risks. No one knows what a judge or jury will do. But I would say that lawyers also tend to be respectful of the process, and, if the parties truly can't reach an amicable resolution, lawyers understand that sometimes you just need to get an outside party involved to decide it. Sometimes that happens to be a jury.
As a journalist, I am very aware of the public perception of my own profession. And lawyers, I gather, are too. Is there some worry about going before a group of lay jurors as a lawyer or a law firm? As a journalist, I see the system every day and I believe in it. But I also would worry that there's some growing sentiment against our professions out there.
Sure. The thing that I've heard, and in my experience has proven totally true, is that people hate lawyers, but they love their lawyer. By that I mean they may not like the system but they want someone who will come in and fight for them in their time of need. Whether it's a divorce, a custody proceeding, a run-in with the law, an issue with their employer, or an issue with their small business: People understand the value of having someone with a trained set of skills who can articulate their story on their behalf.
So one of the things that I do actually in representing law firms when trying to humanize my clients to the factfinder—this is something that you do implicitly, not explicitly—is to always try to leave the jurors feeling that if they ever need a lawyer, they want my client. They may like your client. They may not like your client. I have found that rather than going for likes, you’re going for respect and the respect of the role. I have found that to be very powerful and jurors do react to that.
Well, having this as a significant piece of your practice—seeing law firm clients you represent being accused of malpractice and in some instances accused of breaking the law—that has to shape your approach to the practice in some ways, right?
Absolutely! In fact, I always encourage young lawyers at the firm, even if they don't want to make this a part of their practice going forward, to represent a law firm or lawyer at least once in their career, because it makes you a thousand times better lawyer.
It makes me more empathetic to witnesses because the lawyers I’m representing are very close to me: They have the same background that I do. They deal with the same stuff on a day-to-day basis as I do. And so seeing how they got themselves in this jam, I'm just much more empathetic with them than I may be with a witness who has a totally different line of work—a different skill set and training. So it makes me more empathetic not only to the law firm witnesses, but to witnesses in all other professions, all other industries.
It also makes me more thoughtful about handling mistakes. Any lawyer who tells you they've never made a mistake is not a truthful lawyer. I would say that a large part of the problems in many cases don't come from the initial mistake, but they come from the handling of it. I understand it's a very fraught time. Lawyers generally are Type A. We’re perfectionists. We like everything to be perfect. So when something goes wrong, there's a tendency to freak out about it.
It also makes me more thoughtful about emails. Lawyers often think, “Oh, I'm a lawyer. Everything that I write is attorney-client privileged.” Well, if a client ever sues you for malpractice, those emails are no longer privileged. So every email that's gone back and forth—including between members of your own team—those are all of a sudden produced. So if you've ever had a bad day, and you're grousing about another member of the team, all of a sudden that's going to be produced in litigation and it's a bad look.
Then the other way that representing law firms has changed or affected my practice is that I involve the client now more in decision-making than I think I would if this were not my main practice area. And that applies with law firms but also other clients. I think that you can do that in a way where you're not sending a lot of CYA emails. But you can send agendas before calls and summaries or notes of the call in a way that doesn't seem overly CYA, but does create a real-time record of the fact that the client was involved in the decision-making.
Well, doctors have a reputation as being difficult patients. What are lawyers like, as clients?
I think lawyers are lovely as clients. They understand the job. They understand the rules. They understand the limitations. Even if we're right, for example, that doesn't mean that we're going to win a motion to dismiss. In my experience, they also are very grateful and very appreciative clients. They understand that we're trying to learn their case as quickly as we can and that may require us asking the same question a couple of times before we finally get it.
I really find it a real privilege to work for lawyers because they're so smart. They're so grateful. They recognize good work. They motivate you to do your best work because you're going to have a sophisticated audience reviewing it.
Are they any more or less apt to second guess your decisions?
Let me reframe the question a little bit. I think, yes, they are. And that is one of the reasons that I try to not go to them with too many decisions or even recommendations. Instead, I go to them and say “Look, here's the situation. Here’s a couple of ways we can handle it.” I generally try to talk it through with them. In my experience, they like being part of the process. They feel a little bit of agency by having a seat at the table. Frankly, it makes my defense of them better. They know these facts better than I do. They’ve lived them.
If I go to them and say “Here’s what's going on. Here's how I'm seeing it. What’s your thought?” I have found that ultimately they take an approach where they're part of the team—or part of the same team with a slightly different role. And in my experience, then they don't second guess the execution at that point because they've sort of seen the decision-making process and they're comfortable with it.
Has that process informed how you represent clients who are not lawyers?
It does. It has given me humility. My clients are always going to know their businesses better than I do, and I should try as much as I can to let the law be a tool for them to solve their problem, as opposed to a thing that I'm doing all on the side—really bring them into the decision-making. When you do that with clients from the very beginning of the case, by the time you have some tough decisions to make 12 or 18 months in when you're trying to resolve a case or you're getting ready for trial, there’s been an education on both sides. They have a little bit more understanding of the process. You've talked with them about the judge or the jury instructions or the facts or the challenges in your case. And so everyone's decision-making muscles are pretty built up at that point.
I think I've heard some lawyers refer to it as recognizing that the case is the client's case, and not your case. No matter how much ownership you feel you have of it, it's not yours.
Right. It's their issue. It is their problem. Fundamentally the practice of law is a service industry. We may love the law. We may love writing the perfect brief or arguing the perfect motion. The client really just wants to not have this problem anymore. And so all of those things that we like—the tricks of the trade—they're really just tools to help the client get from having a problem to not having a problem.