Bill Mitchell, Founding Partner of Cruser & Mitchell, joins Bill Kanasky, Jr., Ph.D. to discuss deal-making and negotiation in litigation and how to be disruptive lawyer. Bill Mitchell describes his philosophy on managing litigation and how he got started taking this unconventional approach to litigation management. Bill talks about three characteristics required to operate as a disruptive lawyer: #1 – legal acumen, #2 – proactivity, #3 – emotional intelligence. The two Bills discuss several different challenging scenarios, how Bill Mitchell addresses them, and what he recommends other attorneys doing in those situations.
Full Episode Transcript
[00:15] Bill Kanasky Welcome to another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences. I am Dr. Bill Kanasky. With me today, a return—I like return guests, this is cool, right? Uh, Mr. Bill Mitchell, attorney in Atlanta, Georgia. Bill, how you doing today?
[00:34] Bill Mitchell Hey Bill, I’m doing very well.
[00:35] Bill Kanasky I tell you what, your, your, your dome is looking really nice. I got a—this is, I think I, I should have shaved for this. I shaved yesterday. I, I apologize, but you got some glow on that thing. That’s, I—that’s impressive.
[00:47] Bill Mitchell It’s the lighting in here. I had my makeup people spend at least an hour and a half on me.
[00:53] Bill Kanasky Yeah, we, we talked to our makeup people. Um, Bill, you’ve been on the show before. I find what you do in your angle—um, uh, your angle of what you do, I find that this to be extraordinary. I don’t think it gets talked about enough and I really don’t think people really educated on it. Um, but um, you know, talking to you before and reading up on what you do, um, you, you’re a dealmaker, you’re a negotiator, you’ve written books on this topic, you have a newsletter on this topic. Uh, this is something you’re very passionate about and at the same time, beyond you, I haven’t really heard a lot of people take this angle. Uh, but it’s really, really important. Um, when in your, when in your career did you decide to take this angle of, you know, in other words, at some point you figured out, you know what, having really, really good negotiation skills and thinking a certain way that’s very outside the box from traditional litigation, uh, can be a really real positive for your clients. When, when did that come about? When did that hit you?
[02:01] Bill Mitchell Yeah, well I wish I could take credit for it. Um, but I was working for a big firm—I started practicing in 1990. I was working for a big firm, I wanted to make partner. And probably the key metric to making partner was billing a lot of hours. Um, so that was my goal and that was, you know, our goal is to, to fight, fight, fight, fight and bill, bill, bill, bill. And then at the courthouse steps, uh, case gets resolved most of the time. And so that was my philosophy and I was, I also need to develop clients. So, I was begging this guy from The Hartford to give me some work, and I was like a 5-year lawyer and he, he was smart, he had no reason to give me work. I was a green kid trying to get some work and one day he called me out of the blue and he said, “Hey, I have this school district program and I’ve had it for about a year, year and a half, and they have been using the same lawyer for years and there’s a lot of immunity defenses, what have you, for school board. So, at the end of the day, we are winning every case but every case is litigated. They file a motion on immunity, etc., and they bill 70 grand and they win.” And he said, “So I have this new case and it’s a death case involving a child. It’s a sad case. There’s multiple defendants that the school district’s involved and a principal and here’s the deal: this lawyer gave me a budget, gave me an evaluation, said they’re going to win the case on MSJ likely, again going to cost 70, 80 grand.” And he said a conflict arose early in the case before we got into discovery. So, guess what? “I’m going to hire you. And here’s the condition: if you get this rid of this case cheaper and quicker, you will be my lawyer.” And talk about bizarro world, I’m like, what do you mean? What do you mean? I mean, I mean, no, I’m a billing machine, I bill. Now I try to win, but we’re billing. So, so, you know, I wanted a new client, so I said sure.
So, I mean, I, I guess I started realizing that with the first time I realized I actually was a pretty good dealmaker. So, I sat down and looked at all my leverage and looked at how I could get out of the case and I framed the issue to the plaintiff’s lawyer why I should get out of the case and why they didn’t need me, etc. And uh, I use honey, I use vinegar and at the end of the day, in 60 days, I got a voluntary dismissal, and I billed, I think, $4,500.
[04:24] Bill Kanasky Oh my God. So, however, there’s a, there’s a positive of this.
[04:30] Bill Mitchelkl Yeah, yeah, yeah. So, so now I went to my part—my, my firm, and they’re great guys, but they’re thinking old school and I call that dinosaur lawyer thinking. But they’re great lawyers back then and that, that’s how we did things. And, and they literally said, “You saw $65,000 of billing, what, what are you doing?” And uh, so I—that client, that specific claims manager sent me um, cases for 20 years. And and, you know, I used that client and others within that organization um, in eight different states that send me work. So didn’t lose 75 grand, I probably made millions.
[05:11] Bill Kanasky And that, and that’s a type of math that I think makes some people uncomfortable. It’s maybe hard to get, get your, your head around but um, I, I agree with you and I’ve heard um, I have heard other defense counsels who said the same thing. Uh, funny story, I had a similar story where um, I, um, I was prepping witnesses for uh, um, a client for uh, a key case uh, for deposition and the witness, the wit—I this is an attorney I’d never worked with before, and the witnesses were exceptional at deposition and shortly afterwards the plaintiff counsel figured out I’m barking up the wrong—I didn’t get what I wanted at the dep, and they settled the case. So, I called the defense attorney like, “Oh! Like let’s go! Like let’s like high five!” What, and he’s mad at me. He’s mad at me. I go, “Wait a second,” I’m like, “Wait, the witnesses did great, your clients did great, like this is a win for everybody.” He’s like, “You just killed two years of billing.” And I was like, “Really? That’s like, that’s where we’re going?” But this is true and this has happened more than once and so there’s this like economic pressure which um, I think is, is, is, is tough to deal with. I know um, and I want to talk a lot about young attorneys because I know that you post on LinkedIn a lot about that. That’s a um, one of the major focuses we’ve had on this podcast, and I can assure you, Bill, many, many young attorneys listen to this podcast. So, what you say I definitely want to get them through that. Um, one question I have particularly for the younger attorneys that haven’t done what you’ve done, they don’t have your experience: how do you start the discussion with your adversary right early on in a case to get um, you know, to, to, to be in good graces to be able to communicate, to not start off on the wrong foot? Because I imagine early on in a case if you and opposing counselor are bumping heads, that’s not going to help you achieve your goal. What are some of the steps to take particularly for young attorneys and kind of what to do but also what not to do? Because you start bumping heads, that can really extend the timeline of the litigation and, and really break down communication, right?
[07:28] Bill Mitchell Yeah um, so, so in all my—I’ve thought about this long and hard. I’ve spoken to thousands of claims professionals and defense lawyers. So, I’ve kind of really kind of harvested my approach to all this. And so let me very quickly say this. I think to be what I call a disruptive lawyer, you have to have great legal acumen. You know, need to know the law. If you don’t understand the law, not only do you know, don’t know how to exploit it to your advantage, but you don’t know how to see uh, uh pitfalls and minefields ahead to, to navigate around them or close a case down because you’re in trouble. And in 35 years of practicing law, maybe my biggest accomplishment is I’ve never been ambushed.
[08:15] Bill Kanasky That’s good.
[08:16] Bill Mitchell Because, because we thought ahead and we don’t trust our client, we don’t trust the plaintiff, we do an independent evaluation to figure out what we really think happened. And we challenge our clients all the time to make sure they’re telling the truth because the last thing you want to happen is getting in deposition and they get caught lying and now the case is worth 3X.
[08:32] Bill Kanasky Yeah, right.
[08:33] Bill Mitchell Yeah, right. So yeah, so legal acumen’s number one. Proactivity, number two. Once you figure out the case is about, the quicker you get in front of it, the more likely the plaintiff’s willing to talk to you. Yeah, this is—plaintiff’s lawyers are investing in a lawsuit just like a, a, a homeowner, a developer might invest in a house. And if they know right up front, “Oh my God, there’s—it’s infested with, uh, you know, cockroaches or termites,” they might back off of it. Yeah, it might not be worth the investment or they might re-evaluate the investment. But if they buy the place for 500 grand and six months in they realize there’s termites, they’re screwed. And, and the analysis analogy of this is if a plaintiff lawyer—if you have something that proves the case is a bad case for the plaintiff lawyer and you sit on it, and the plaintiff’s lawyer has now has two or three hundred hours in the case, they’ve come out of pocket 30 grand for depositions, and then you show them that information, what can they do? They’re stuck. They got to still fight you and find a way you do it early, early on, they might walk away or settle it for some de minimis amount. So, so that’s, so you gotta be proactive. You have to have emotional intelligence, which is what your question really hit on. And years ago, I was a moron. When I was a young attorney, some people would say I still am but, but I’m l—I’m less of a moron and that—I used to, you know, call the other side and attack their case.
[10:09] Bill Kanasky Yeah.
[10:09] Bill Mitchell Just like—and I tell my young lawyers now again, if have you ever tried to sell or trade in your car? If you walk into the car dealership and, and before you can say anything the guy’s attacking your car why it’s a piece of crap and it’s not worth anything, you’re gonna, you get a, you get on, you get defensive and you say, “Screw you, I’m gonna go to the next guy.” So, I’m much more open where I call the other side and say, “Hey, you, you’re smart, you’re taking this case for a reason. What am I, what do you have, or what am I missing?” And, and you learn two things in that conversation. One, they might have something and think—and now they’ve told you. Because I’ve been embarrassed where I thought they had nothing, I wrote a letter to my client saying, “We got them,” and then like 60 days in I learned something where like, “Oh—I got a problem.”
[10:52] Bill Kanasky Yeah, yeah, yeah.
[10:52] Bill Mitchell So, so upfront they, they might be honest with and transparent to you and say, “Bill, you don’t know about this witness. This witness is going to screw you.” And if I know it now, then I can—I have credibility with my client to go back and say, “Hey, we got some problems in this case.” So, so I am much more tr—I’m strategically transparent. Yeah, if I don’t trust the other side, I might not share something that will allow them to develop a lie to get around me. But if I—like I do a lot of EEOC cases. So, if I have, you know, a text from a, uh, from the victim saying where the, where the victim says, “Hey supervisor, I think you’re really, really, really hot and you know, I like to hook up with you,” that kind of changes the case. It’s not as bad as it seems. So, I will show it to that lawyer saying, “Hey man, your own, your the victim was soliciting a relationship too, so it’s not this clear as clear as you think.” Right? They can’t get around it, it’s, it’s in black and white. So, so bottom line is I’m much more open and transparent on the front end and I think gives you credibility. If I have a clear liability case, I don’t go in and fight about, you know, the liability. I start out saying, “Hey, you got me on liability, yeah, but I have an issue on causation. So, tell me on causation.” That make sense?
[12:11] Bill Kanasky That makes absolute makes absolutely sense. How do—now how do you accom—and I have several follow questions on this topic because I think this is, I think this is really key, particularly early on communication with opposing council. How do you do this without coming across as weak? Right? Because I think one of the issues is like, “I don’t want to show any weakness and if I talk about settlement they’re gonna think I don’t have…” Like how do we deal with that?
[12:44] Bill Mitchell It’s, you know what, again, so emotional int—intelligence, right? I think certain lawyers are really good at talking to people and some aren’t. So, I do one of there—I have three or four different ways I do it. If I’m in federal court, I say, “Hey man, um, you know, we have to, you know, we have to do the um, the federally um, the the mandated Federal um civil procedure and local rules um, um filings and one of the filings the question is has there been any settlement negotiations or discussions, right? I have, I’m compelled by the court to discuss it. So, let’s discuss it.” So, I do it that way. I, I, I many times do the “fork in the road” talk which is, “Hey, here’s the deal. We’re at the fork in the road in this case. I’m about to bill. The billing machine, the litigation machine—that train is leaving the station. However, if you can make a reasonable demand, they might focus on resolution rather than litigation.”
[13:38] Bill Kanasky Yeah.
[13:42] Bill Mitchell Which way do you want to go? And I’ve had guys say—you let’s say case is worth a 100 grand and the guy says, “Well Bill, you know, you know we offer, we demanded 800 grand and you guys didn’t counter,” and I might say, “You know what, Stan? Please stay at 800. You know, this is a low six-figure case and as long as you’re 800, I can get wallop for 750 and I’m going to be a hero. Now if you want to get real and you want to come in at 250, we have something to talk about.” So, so, you know, I have an open conversation. Now with the dinosaur lawyer, does Stan says 800 and he says, “Okay, let’s get deposition dates,” and they’re off to the races.
[14:19] Bill Kanasky Yep.
[14:24] Bill Mitchell Because they don’t have the tools. Either they don’t want to or they don’t have the skill set and mindset set to get the guy to get real.
[14:32] Bill Kanasky That’s, yeah, this is, this is really, really great stuff. So, a couple of um, staying on the same topic but a couple of other scenarios I want to, um, yeah, run by you. How do you deal with—uh, funny, I just got off a call. I’m gonna get—so this is not part of my outline—but they said, “We’re dealing with the plaintiff attorney that’s being unrealistic, and the motivation is to make a name for himself.” Like he, he wants to do something like “Kaboom!” right? To get on the map and therefore not really playing in the sandbox very well. How do you deal with that?
[15:13] Bill Mitchell Well, two things. One, so I have a saying: when my people says that lawyer unrealistic or crazy, I ask them, “Are they unrealistic or are they uneducated?” If you think you have a good case, then you need to be transparent strategically with them and outline why you think you have a good case. And if they’re rational and reasonable business people, they’ll change their philosophy on the case even if they puff and say, “You know, well that’s BS, we’re going to fight.” You’ll see in their—the way they attack the case or whether they negotiate it—that they’ll get real. If, if they’re fighting about, if they want a name from themselves with—I call them, they’re being cowboys. They’re not being ethically um, you know, responsible to their clients. I think sometimes—I’m not, I do not believe in making the first offer 99% of the time, however, if you got a cowboy and you know you got, you’re going to pay some money on the case, then I would make an offer to make their—they’d have to go back to their client, at least make their client think, um, “Why are we going to go forward for two years if we’re, they’re offering us X now? Maybe we get rid of it for 2X.” Um, every case is different. That’s what I tell my people, every case is different. So, you have to think strategically, “How, how am I going to get it to the right spot?”
[16:27] Bill Kanasky Yeah. Now um, as we all know, uh, reptile was born right in your backyard down the street, now known as Edge. And um, you know, we there’s this, you know, there’s this clip of Don Keenan on YouTube in one of his seminars that somebody posted and he said—and this is right from the reptile book too—but Don, Don Keenan pretty much told his, you know, followers or the people attending whatever, yeah Zoom conferences was, he said, “Listen, you’re only gonna get top dollar if the pressure of an imminent trial is there. Otherwise, you’re not getting top dollar.” What would your response be to that?
[17:16] Bill Mitchell Um, I think, you know, he’s not wrong all the time. But I think if he’s dealing with the right people, he’s wrong a lot of the time. I mean, with me he’d be wrong. He—you’re going to get your top dollar with me very early on. Once the litigation train leads the state, the client starts paying me, that dissipates.
[17:33] Bill Kanasky Now, uh, that—that’s a very, that’s a very good point. Now do you—okay, another scenario. I got another scenario for you that you’re gonna love. The the next two are great. The next two are fantastic. I’m by the way, Bill, I’m kind of getting good at this podcasting thing. It’s been five years, not bad huh?
[17:51] Bill Mitchell No, actually you are. You’re, you’re streaming.
[17:51] Bill Kanasky I’m not the, I’m not Joe Rogan but I’m, I’m, I’m getting there. So, so uh…
[17:57] Bill Mitchell No, almost as big as Joe Rogan. You’re cut, man.
[17:57] Bill Kanasky Yeah, I’m, I think I’m a lot taller than Joe too, I think. Um, but yeah, no, he’s not—I actually enjoy his podcast, but uh, we’re not going three and a half hours like he does or two and a, two and a half hours, nobody would listen. Okay, here’s a, here’s an interesting scenario. All right, you have a codefendant that’s an a-hole. Now you’re not only dealing with your adversary, but now you have an adverse codefendant. This makes things maybe two or three more times complicated. How do you juggle that? Because now it’s, now it’s like 3D chess, right?
[18:38] Bill Mitchell Yeah um, and you’re hitting—so, so I’m gonna answer the question but I want to say something up front. My philosophy—I don’t say my, my philosophy mindset skill set works 100% of the time. But if your, if you get 100 cases and you implement it a 100 times, it might be successful 60, 70% the time. A dinosaur lawyer, it’s going to be successful 1% or 5% of the time. So, you know, as long as I’m out there swinging, I’m gonna have success and that 50, 60% of the time is going to save millions in legal fees. Yeah, millions. Um, but getting back to your scenario, I get—I’m involved in several, you know over the years, several, you know like construction defect cases…
[19:21] Bill Kanasky Oh those are the worst. Oh, everybody’s blaming everybody.
[19:25] Bill Mitchell Yeah, in many if, if you and of course you might have m—multiple indemnities. But I have cases where, you know, it’s, uh, you know, the plaintiffs just sue 20 people and I really have—I I call, I’m the tip of the tail of the dog on exposure. I’ll go to the plaintiff lawyer and say, I’ll go to my clients say, “Here’s the deal. I think we have no liability and, but the problem is this: I’m going to bill 250 grand and sit in 35 depositions and you’re going to kick their ass negative 250. Or I can go to the plaintiff and say, ‘Hey, I’m the tip of the tail of the dog. I’m never going to pay anything at mediation, but I might be able to pay you right now to get out of this case for 100 grand. What do you want to do?'” And get in negotiation. Now here’s, here’s what I’m emphasizing and I tell my people, because I have some people on LinkedIn say, “Well you know, you’re just about settling.” No, I’m not. I’m about informing my client. My client defines a win. But my d—client cannot define a win until they have all the information in front of them. And I, I just did a training here in Atlanta for my own team last week and I use a car metaphor. When you go to the car dealership to buy a car and you go in the dealership and you go in the showroom, you see a car, what’s the very first thing you do here?
[20:40] Bill Kanasky Look at the price.
[20:40] Bill Mitchell You look at, you look at the price, yeah.
[20:46] Bill Kanasky That’s the first thing you do. First thing you do.
[20:46] Bill Mitchell Yeah, so in my world I tell my people what we need to do on every case as quickly as possible is tell them what the cost of the case is going to be. In the scenario I just told you, the cost of the case—legals 250, indemnity maybe it was zero—but I would say at the end of the day, two years from now, I’m going to win on a motion, it’s gonna be negative 250. Now, you know that information, client, what do you want to do? And they might say, “You know what, Bill? We love you, bill the 250.” Or they might say, “You know what, if you could get rid of this for 150, we’d rather buy out of this thing, right?” So, they, they define the win.
And so here’s where I—I don’t want to jump off to another topic, but I have merely—I’ve talked in my career why I wrote this book, and here’s, you know, here’s my book, The Disruptive Lawyer’s Little Black Book of Litigation Management. I got a negotiation book too, but there you go. Why wrote this book—and it’s free so I’m not like trying to, you know, make money here…
[21:46] Bill Kanasky You plug it baby, you plug it.
[21:46] Bill Mitchell My book is this: I for the first 20 years of my career I would talk to claims people and their number one issue was—because I hate lawyers that say they’re going to win at trial, they bill 100 grand and literally the week before trial suddenly say, “We need $500,000 more to settle the case.” And, and I asked, “Well, what happened?” And of course they come up with some BS reason, “Oh well they got an expert.” Well, no, they were gonna get an expert, you know. So, so the—so based on that, that was number one. Number two, when I do these seminars everywhere on litigation management and I ask the same question to everybody—I was just at CLM and spoke to maybe 300 people and I asked everybody in the room—I got my calculator out—”Okay, there’s 300 people in the room. You’re all handling about 150 claims in, in over two years. That’s 300 claims. So, 300 times 300 is what, 90,000? Raise your hand if you tried to case in the last two years.” Literally six people raise their hand.
[22:48] Bill Kanasky Wow.
[22:54] Bill Mitchell And then two will raise their hand say, “I tried two.” It literally is in most get, get rid of the, the the um, the um, low-limit auto cases—State Farm, Allstate, Geico—$50,000-type cases. 95% of all cases settle, and less than 1% go to trial. So, my question to you is: if you know 95% of all your cases are going to settle, when are you going to settle them? After you pay me five grand? 15? 40? 100? Strategically, there might reasons to pay me 100. But if you know it’s going to settle 95% of the time, why aren’t you hiring dealmakers that can find ways to resolve cases more economically and efficiently? And what I realized when I studied it: no one’s training lawyers how to negotiate and claims people how to negotiate. So I created this book.
[23:51] Bill Kanasky That—that is, that is fantastic. And um, again, it’s like you’re the only guy that’s been that—been screaming this at the top of your, your lungs. I think this is really, really uh, important stuff. So this, this is—this is really good.
[24:05] Bill Mitchell Now you probably saw my LinkedIn. I, I said, “Wandering through the desert by myself screaming,” you know. I had this guy call me. He said, “I watch—I read all your LinkedIns, I love them, and I want to figure out how to implement your philosophy in my organization where I’m like a mid-tier guy and no one listens to me.” And, and we had a great talk and, and said the bottom line is we’ve had dinosaur lawyer panel counsel for 20 years and they just don’t listen. And I said, “Well then number one, you need to be on every call with the plaintiff’s lawyer at the very beginning to find out what you’re fighting about.” Because negotiations is a nuanced dance. And if you listen to the call, you will know if you can resolve the case. You got to set up expectations for your counsel saying, “If you’re economical and efficient, I’ll use you again.” Um, but until you trust them, you got to be more involved. And if they’re filing MSJs, why are they filing a motion for summary judgment? Give me the case on point. I mean, I talked to so many claims people—I think that I think MSJ success is under 10%.
[25:12] Bill Kanasky Wow.
[25:14] Bill Mitchell So, so you better have a really, really, really good reason why you’re filing an MSJ.
[25:18] Bill Kanasky This is great stuff, Bill. So, when you have a—so kind of the final scenario here—when you, and I’m sure this is—this happens, right? You have a client that’s emotional, right? Maybe angry and um, perhaps uh, overconfident. That—that’s a bad combo. And they can’t—how do you communicate with your own client when they’re seeing—they’re not, they’re not seeing things in a realistic manner, without pissing off your own client and and trying to bring them down the reality? Because oftentimes because of the nature of the case, uh, they’re upset or they’re angry and like they kind of refuse to see their own flaws in the case and that, that can lead to terrible decision-making.
[26:10] Bill Mitchell Well I think there’s number one, I have credibility with many of my clients, which makes it easy. Or they know I’ve tried cases. They’re not—they know I’m not afraid to try cases. Um, I’ve never had a nuclear verdict against me. You know, there’s a lot of evidence out there that I talked to so many plaintiff’s lawyers who say, “We would sell this case for two million and we got 80 million or 20,” or right? You live that.
[26:33] Bill Kanasky Yeah.
[26:34] Bill Mitchell Um, so, so you know, I leverage that. That, you know, “You know, this is a ca—I literally will tell them: this is a case you might get fired on. So, here are the 10 reasons why I think we’re in trouble. And before we go to the mat and may lose and get walloped and you get fired, why don’t we go to your boss? Why don’t you get your own insurance policy, so you have buy-in? And then when you have buy-in and your boss is on board, then I feel comfortable, you feel comfortable. Let’s go forward.” But I mean, and thirdly: hire guys like you.
[27:08] Bill Kanasky Yeah.
[27:12] Bill Mitchell Because I mean, I—I mean, how many cases have you been involved in where you’re hired to consult in you—what percent are you in that you go, “Jesus, why are they going to trial on this? They haven’t thought this through, they haven’t prepared it through, they’re going to get walloped.” What percent?
[27:25] Bill Kanasky Oh, it—it’s uh—well I tell you what. 10 years ago, it was, it was most of them. Now it’s like down the 50/50.
[27:31] Bill Mitchell Okay.
[27:31] Bill Kanasky Which is improvement, but still, there’s a lot of calls I get and I’m going, “Oh my gosh, how—like how did we get—like how did it get from there to here? Like how—”
[27:43] Bill Mitchell I had a horrific case. So, I do a lot of trial counsel work—or I mean, trial roundtable work—where they bring me in just to listen and consult and then usually hire me to settle it. And you know, my main question in my, in the trial roundtable is, you know, “Defense counsel provides the case, what’s it about?” And, and I’ll be like—this is my main question, “That’s fantastic. Do you have actually have admissible evidence to prove all that?”
[28:06] Bill Kanasky Yeah.
[28:08] Bill Mitchell And and we’ll be like two years in the case and it’s going to trial in 60 days and we’re like, “Well, you know, we’re still kind of working…” I’m like, “What are you doing? What do you mean? It’s a $10 million exposure and and we can sell it for three million and you’re not sure if you have the admissible evidence to prove your defense?” So, my question to you is: do you think it’s just cognitive dissonance? Do you think it’s close-mindedness? Do you think it’s—what is it that these 50% miss the fact that this is a, a major clear loser?
[28:39] Bill Kanasky I think there’s a couple of factors involved and I’ve talked to a lot of people about this. A couple of things that have come up—a lot of it’s systemic. So, I’ve heard many of—uh, notes on this, no—no problem—I’ve heard many of claims people say, “I have so, so many files, I can’t keep up with these things,” right? And so, then what they do—this is what they’ve told me privately—is that they kind of just push a lot of the responsibility to the defense counsel and they tell the defense counsel, “Okay, if, if the [redacted] gets thick, call me, right? If the [redacted] hits the fan, call me.” And then that call comes too late, right? And because they’re so overwhelmed with the number of files, they can’t keep an eye on everything. So, by the time they detect the fire, it’s a blazing structure fire. And then to put it out is typically a nuclear settlement, right? Or, or you’re foolish enough to take the trial, you get a nuclear verdict. You know, that’s been—that’s been one of the reasons um, that I have heard from, from the claims side of things.
Now from the defense attorney side, this is interesting. The defense attorneys tell me—again, very, very quietly and privately—they’ll say, “I knew this was going to be a five-alarm fire from day one. I was screaming my head off. My client said, ‘Don’t be such a [redacted], handle this.’ ‘Well, I want to focus group, I want a mock trial, I want to prep—’ ‘No, no, no, we don’t need any of that.'” And then it’s more of a, “I told you so,” type of thing from the defense counsel saying, “I wanted—I wanted a fire truck and I wanted a bunch of water to put out this fire. You, client, would not give it to me because you’re too damn cheap and you put cost ahead of the claim and here we are right now.” So, I’ve seen it kind of go both ways. What, what are your thoughts on that?
[30:34] Bill Mitchell I think number one is accurate and true. And I’m a huge advocate of, of having—if you had really good claims people running 75 cases at most, they would turn them over quicker and save millions. Yeah, you know, millions. But they—instead, they’re running 200 cases and they’re bleeding. Right, by the time you see these cases, defense counsel’s billed a couple hundred grand and you’re like, “They should have sold it 150 grand ago,” right?
[31:01] Bill Kanasky Yeah.
[31:02] Bill Mitchell Yeah, they—that’s number one. Now, I think defense counsel are doing the same thing. They’re so busy.
[31:08] Bill Kanasky Yep.
[31:08] Bill Mitchell And they have young lawyers running these cases and they get out of control and have an “oh crap” moment. But it’s 18 months into it.
[31:18] Bill Kanasky Ah, yeah, yeah, yeah, yeah. And this has come up recently. Uh, I did a—I did a talk in California last week and, and this issue came up. And you’ve—and I know you’re on LinkedIn a lot, I follow you, uh, I like all your posts. I, I think—I think it’s a good medium to get some of these ideas out there. The number one post by far I see on LinkedIn from defense attorneys is, “We are hiring and looking for help.” Bill, and they have told me it’s—they’re over—right, they’re overwhelmed. And you have that, right? So, the number of files that defense firms have and then—which is, this is the big issue—it’s the uh, what you—I guess we’d call both uh, attracting good attorneys to your firm, but then retention, keeping them at your firm. There’s a lot of bouncing around and uh, what I have heard from senior equity partners is that’s their number one headache. It’s not just attracting the talent, but somehow keeping them there. When you have all these younger attorneys bouncing around for maybe a better salary or whatever, is that something you’ve seen in the industry? And, and, and and how does the defense deal with that? Because this is a nationwide problem.
[32:34] Bill Mitchell It it’s—it’s our number one issue. And we literally two years ago invested a lot of money into training and culture. Yep, a lot. We, we give away tickets, meals. We have a cornhole team. Tr—I just looked at we have a fun committee. We did 20 things last year and we actually just have a survey here in Atlanta. 95% of our associates said they love it here. You know, so investing in all this cultural stuff and training stuff—I hired a training—training guy from The Hartford to, to because you’re investing in getting them better. And and we have huge opportunity because, you know, we have a lot of new clients, and the new clients need lawyers. And and and but and and frankly we say no, we turn down—I bet you we turned—turned down well over 100 cases last year. Just said, “We, we want to provide great value. Our reputation is that we’re—we provide great value and we’re, we’re at 100%. We can’t—we can’t help you right now.” And and people are kind of shocked and surprised that we do that, but they’re also thankful.
[33:40] Bill Kanasky Now, I think—I think that’s a big deal. So, something uh, with something I don’t have a lot of time for—I try to check it like once, maybe twice a week—um, I go and—I forget the name of it, I have to look up the name of this uh, but it’s on, it’s on uh, Reddit. Okay. Reddit has like a lawyer, litigator, trial attorney like group, right? So, so the whole thing’s trial attorneys. That’s plaintiff attorneys, that’s defense attorneys, it’s a mix. And you have different topics and it’s all anonymous, right? So, when you take, you know, we put anonymity in the thing, it’s amazing what you can, you know, read about. And I read these threads and you have people that work in insurance defense as a defense attorney on there saying, “I’m overworked, I’m underappreciated. The, the culture is toxic. It’s all about the number of hours I, I bill and no one gives a [redacted] about me.” It’s really, really, really negative. And um, I have seen some uh, defense firms uh, that sounds like yours as well, that are trying to really put a lot of, you know, effort and time and energy into building a culture that’s going to be attractive. Not just to attract people, I think the hardest part is to keep them, right? And I, I think—I think if, if that can happen across defense firms, uh, that would improve retention. Because like I tell you, when, when you have uh, a bunch of attorneys bouncing around, uh, it’s hard to maintain stability. And then when you lose a couple and you think you’re busy, you know how it happens—if you lose somebody, now the business spreads to everybody and it’s, it’s just impossible to give the files the amount of attention. Like you said, by the time you recognize you’ve got a problem, like it’s—it’s, it’s too late.
[35:28] Bill Mitchell Yeah, you got to be proactive. Yeah, jumping—if you get in front of these cases early, you know, we just settled a client—I mean case—not a big deal. We, we say we had a case recently where we got in front of it early. So, the cur—we had a conflict issue where they’d have to hire two law firms, and the two law firms would have billed100 grand. We got in front of it early because of that. Stayed it, mediated it, and settled it for like 40 grand. We saved the client 60 grand just legal, let alone the indemnity. I mean, I don’t know—it would have settled for 50, 70, 80 grand later and that’s 180 grand out of the carrier’s pocket. But our problem—I will tell you this, and you—you we had talked about it for a minute um, I think a couple days ago—is you know, I have my team coming to me. I mean you have this issue about appreciation, and you know, many times you’re only as good as your last case. And, and and we got to work on, you know, we got to figure out how to collaborate better with the industry and um, you know, I have—I have partners coming me all the time saying, “Why are we being economical and efficient? No one cares.” Happens all the time.
[36:37] Bill Kanasky Yeah.
[36:37] Bill Mitchell And and I’m a very principled guy and I have almost once thought hmm, but I keep telling them, “We do the right thing because that’s the right thing to do. If we can get rid of a case and bill five grand versus 50, we do it every time.” And if they don’t know or care—and let’s face it, the average claims adjuster, they’re not getting metrics on saving 40 or 50 grand in attorney’s fees. What they get metrics on is “Are—is the reports in? Is the budget in?” Right? So, there’s nothing there really pushing economy and efficiency directly. But what I tell my people—and I would tell claims people listening, I’ve said this for five years—I didn’t know I what AI was, but five years ago I started telling people, “There is a camera watching you. It’s your computer.” And one day someone will be able to push a button and say, “Oh my God, Harry the claims examiner or Harry the law firm—every time they do a case, it’s 90 days, 10 grand in fees, and 13 grand in indemnity. And that whenever the other guy does a case, it’s 3X.” So, one gets fired and one gets more work. I think that’s gonna happen. So that’s why you always do the right thing.
[37:44] Bill Kanasky Yeah. And and by the way, um, I don’t want to—I I don’t like talking politics at all because that always leads to, to something bad. But you look at what’s happening right now with like the whole DOGE thing, right? But you could take that, you could do that with your family. Like I, Bill, I’ll tell you true story, I went DOGE on my family this week. Know why? I went and I got the—and I’ve been busy as hell—and I went and I got a little—I’m looking through my email, looking for my junk mail, and I got the email like, “Hey, your credit cards—” this is the family credit card, right? Family credit card. I, I get the email “Your statement is ready for review.” And I typically blow—but I, Bill, I don’t have time for this, right? So, so I, I said, “Yeah, I’m at the airport—I have nothing better to do.” I clicked on it and it was like: how many times are we going to Chick-fil-A in a month? Oh my God. And then they’re doing this, and then they’re doing that. And I—so of course I came back home and just ripped into everybody, right? And that’s where your credit card can kind of analyze kind of where your money is going, right? And yeah I think—and I have heard of some clients uh, usually corporate clients who have done that and they’ve done the analysis or they’ve paid somebody to, to come in to say, “Wow, let’s look across these defense firms. You know, these like get these results, but here’s how much they cost.” And they can start comparing cost. And I do think you’re right, as the technology grows, particularly with AI what it can do with numbers, I think you’d want to be on the um, the more cost savings end of that equation. Because if they see you as a, a money pit, right? It’s going to get people’s attention, and probably in the wrong way.
[39:26] Bill Mitchell And I’m waiting. I mean what’s—what has befuddled me for the last decade is the insurance industry is so sophisticated. It’s been around forever. And yet I, I will—I I would—I’m pretty sure I was the first guy to do metrics and scorecards back in 1996. And if somebody—I called it a scorecard, so maybe if somebody’s done one before 1996 I wanted—because I want to do a g—a rate increase. I went to a client, said, “Hey man, you sent me 10 cases. We thought they’d cost you know, 250 grand and I only billed 125. Can I get a 10-buck rate increase?” And they’re like, “Well yeah, I mean wow, wow, yeah you did great.” And so, I give scorecards to my clients. I—I’ve almost stopped because I give it to them and I say, “How am I doing?” and they’ll go, “This looks fantastic.” And I’ll say, “Well, how do I compare?” And 100% say, “We don’t know. No one else does this.” And we—I’m like, “Why don’t you ask for it? Or why don’t you have the ability to do this?” And they don’t. So, they’re not—you know, you, you can only manage what you measure, right? And if you—I guess they, yeah, I don’t know if they don’t believe—like I think they don’t believe lawyers and and really, really good lawyers, dealmakers, and claims people are different. They—I don’t think they—I’m not sure if they’re bean counters they think they—I I went—I was at a CLM seminar and said this because they were talking about, you know, how to save costs and they’re talking about making 0.1s into 0.5s or one—1.1s into 0.5s and things. And I stood up and said, “You all are crawling around the, the, the living room looking for nickels and dimes and quarters under the, the sofa.” If, if if I—if I—know what one of my key metrics is? Percent of cases we don’t do depositions in. It used to be 90%. I get a case in, we did depositions all the time. Yeah. I’m under—under 30%. So, take give me 100 cases and I do three dep—I do depositions 30 times at 10 grand, that’s 300 grand. Another guy does um, depositions 80%. That’s 800 grand. That’s a $500,000 difference. That’s the freaking money! It’s not the 0.05 or the or, or cutting 2% because I I didn’t um, you know, dot my eye in a budget. I mean, it’s—it’s backwards and I—you’re seeing I’m getting revved up but it yeah, it blows my mind. I have challenged insurance carriers and I’ll—I’ll do right now: send me 50 cases and let me do it my way, but every other case, and then send 50 cases to whoever always does it for you. I guarantee you on legal I’ll probably be 20 to 40% cheaper. Indemnity, at least 10, maybe 20, 30%. But no one will take—no one will take it. And I don’t know why. Maybe think I’m I’m a snake oil salesman.
[42:24] Bill Kanasky A lot of them are stuck in the traditional philosophy in the mindset. It’s hard that—people don’t like to change, Bill.
[42:30] Bill Mitchell But if you’re gonna save money and it’s gonna work, why—why wouldn’t you give it a chance? What do they have to lose besides I think their own ego? Like, “No, no, no, I’m, I’m the claims manager, I know how to do this stuff, this—we always do it this way.” Or you know, “I’m the CEO and you know…” I don’t know. I, I’m not picking on people. I, I’m just surprised that metrics hasn’t been a bigger part in driving uh, these results.
[42:56] Bill Kanasky Yeah. I think—I think going forward, particularly with the AI stuff that you’re talking about, I think it’s going to be a major factor in the next three years, probably. Um, and that’s something uh, it sounds like you’re ready, but other uh, firms will, will have to be ready for it.
Well, Bill Mitchell, thank you so much for coming on. Now for uh, attorneys or even claims people that want to get your books uh, uh Litigation Management and Negotiation, where can they go?
[43:22] Bill Mitchell Um, email me at BMitchell@CMLawFirm.com.
[43:32] Bill Kanasky I hope you get a lot of emails uh, and I appreciate all the work you’re doing. Thank you so much for coming back on the show. Uh, you and I keep in touch and I really, really appreciate it. I think you’re doing something uh, really positive out there and um, I, I, I love your energy and I wish you uh, you know, best wishes going forward to 2025.
[43:51] Bill Mitchell Well Bill, I appreciate you too and I thank you for the time.
[43:53] Bill Kanasky Okay, hang out for a second and uh, to all of our viewers and all of our listeners, thank you so much for participating in this edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences. We will see you next time.
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