Six months and a week ago, I started a new job as a senior assistant city attorney at the City ad County of Denver in the civil litigation section. We handle lawsuits brought against the City and County of Denver, and against City employees where the lawsuit arises from the employee's official duties.
The job
Most people who work in my section have backgrounds either in criminal case litigation, or in private sector insurance defense of personal injury cases. I was one of the fairly uncommon applicants who had significant prior experience in civil litigation with government entities. One of my main responsibilities at my first job in Colorado, in Grand Junction, was defending county governments all over Western Colorado from lawsuits, which is more or less exactly what I do now defending the City and County of Denver. In my subsequent private private of law, I had a low volume, but steady trickle of cases where I represented private parties in lawsuits against the government, in addition to having broad civil litigation experience making up about half of my practice in a variety of other areas in both state courts and federal courts. This has allowed me to hit the ground running, compared to many of my peers.
Fortunately, our office operates with a very high level of professionalism, and my co-workers are good to work for.
My current case load (which varies from lawyer to lawyer in my section based upon the lawyer's experience and aptitudes) is about 60% civil rights litigation (mostly, but not entirely, involving actions of the police and jail guards), about 20% plain vanilla personal injury litigation like motor vehicle accidents that is similar to what private insurance defense lawyers do but with a governmental liability twist, and about 20% litigating subpoenas and public record requests where there are disputes that go beyond what can be resolved by records custodians out of court.
Different sections of the City attorney's office handle employee discipline and employment related litigation, enforcement of ordinance violations, child protective proceedings in cases where there are allegations of abuse and neglect, and transactional/corporate counsel type work for matters like negotiating and monitoring compliance with contracts between the City and its vendors, drafting ordinances, lobbying the state and federal governments, and managing conflicts that arise between different city agencies and officials.
There are also some governmental agencies which many people think are part of the City and County of Denver, but which are not: the Denver Public Schools, the Denver District Attorney, Denver Health (the county's public hospital), the Denver Housing Authority, the Regional Transportation District (RTD), the Downtown Development Authority, the Denver District Court, the Denver Probate Court, the Denver Juvenile Court, and probably a few others that I've failed to mention.
The Denver County Court is a unique hybrid court that combined the roles of the limited jurisdiction state government's county court found in other Colorado counties, and the role of a municipal court for the City and County of Denver where municipal ordinance violations are prosecuted.
The biggest change for me has been transitioning from being self-employed for two decades to being a salaried W-2 employee.
Mostly, this is for the better and was an important reason to take this job. Instead of having to invoice clients and pester them to pay their bills, or to wait until contingent fee cases are converted into money at the end of a case, money just magically appears in by bank account without me even asking for every two weeks. I get paid vacations and sick days! I get my health insurance through an employer plan, a switch I made shortly before big cuts to Affordable Care Act subsidies for self-employed people seeking health insurance took effect. If I continue to work for the City for five years, I get a defined benefit pension. I have a public sector defined contribution plan to which I can contribute about 20% of my income. I can pay for my parking expenses with pre-tax dollars. I don't have to pay anything out of pocket to get IT support. My tax returns will get a lot less complicated starting in 2027 (I had some residual self-employment work and income wrapping up my private practice in early 2026). I don't have to deal with fixing broken copying machines, building maintenance, hiring employees, tax withholding for employees, office security, arranging telephone and internet service, balancing an attorney's trust account, and so on. I don't have to spend large chunks of time marketing and deciding which clients to sign up. My work is mostly (not 100%) confined to 9-5 on business days.
I also get to work in a place with good systems in place, with adequate administrative support, with competent fellow attorneys who can cover for you while you are sick or on vacation, and top quality legal research and office related software packages.
We still have to pay close attention to potential conflicts of interest in new cases (and conflicts of interest that can emerge during cases), so we can send conflicted cases to outside counsel. But, unlike my fairly brief stint in a multi-state law firm with about a thousand lawyers, I don't have to spend half an hour to forty-five minutes every day (like every single other lawyer in that entire law firm) screening new cases brought into the firm for conflicts of interest.
Best of all, except for particular phases of the small share of cases where there is a prospect of receiving an attorneys' fee award, I don't have to track every tenth of an hour of every single working day, since all of the work we do is for the same client and is very unlikely to be the subject of attorneys' fee litigation.
Insights into law and policy and legal practice
Most people, most of the time, are outsiders to government, sometimes spinning conspiratorial narratives about what they think happens behind the scenes in the criminal justice system, and in government more generally. In my subpoena and records request practice, and in civil rights cases, I'm on the opposite side of the fence, with more or less complete access to the full "behind the scenes" story.
I almost always know more about what actually happened, sometimes legally relevant and sometimes not, than the other lawyers in the case and that the judge. It is a rare case where I don't know more or less exactly what happened in all legally relevant ways within a month or two of receiving it, and often within a couple of weeks.
I have nearly full access to all relevant records and a full ability to interview the government employees involved in a context where they are more quickly forthcoming about what I want to know, than in the formal discovery process.
The truth isn't nearly as nefarious as conspiracy theorists and a plurality of civil rights lawyers would have you believe.
This isn't to say that law enforcement officers or jail guards never make mistakes that hurt someone, sometimes in ways that give rise to legal liability, and sometimes in ways that don't.
A significant portion of my job is facilitating the payment of reasonable settlements to people who have been legitimately wronged by the government or government officials. Sometimes a city employee is clearly at fault in a motor vehicle accident. Sometimes a law enforcement officer does cross the line and is in the wrong. The City pays out millions of dollars a year in settlements and judgments as a result.
Most settlement payments err on the side of being generous, in order to avoid the risk that a jury won't correctly evaluate liability and damages in a case and will award an excessive amount.
A significant minority of jury awards reach the wrong result on liability or damages (sometimes for the government and sometimes against it), often (as post-verdict juror interviews reveal) for reasons that shouldn't be legally relevant or reflect misunderstandings that neither side's lawyers even contemplated were possible. Most of the time, juries reach verdicts that are close to being right, but not all of the time by any means (even when the lawyers and judges are doing their jobs correctly).
My rule of thumb (based upon the available academic literature on the topic, and confirmed by my personal experience) is that in a best case scenario where the lawyers and judges in a case are doing their jobs right and the law dictates a clear answer, is that the likelihood that a jury will reach the wrong conclusion is about 10%.
The odds that the jury will reach the wrong conclusion rockets up, of course, when one or the other side's lawyers engaged in misconduct, or the judge makes a significant mistake (not always appealable), or there is litigation misconduct by a party in the case such as destroying or fabricating evidence or lying under oath (often not known to the lawyers). The most common problems, however, are lawyer incompetence or a bad ruling from a trial judge or sincere but incorrect witness memories about what happened, and not outright litigation misconduct.
Some kinds of suspicions about what is happening behind the scenes are more often correct than others. For example, I know (from having access to what is in them in cases where I move to quash subpoenas) that the vast majority of internal affairs files sought by defense attorneys in criminal cases that are withheld from them, truly aren't material to the outcome of those cases, even at the margins on credibility issues. The kind of conduct that law enforcement agencies, and governments more generally, care about for purposes of internal employee discipline, are only vaguely similar to the kinds of conduct that give rise to legal liability, or would be relevant in a criminal case in which an officer was involved in some way and is a potential witness.
Timelines
Different kinds of cases have different timelines. Records request cases and subpoenas are typically litigated over a period a week to a few months. Ordinary personal injury cases in which a defendant just happens to be a governmental entity, tend to be fairly simple cases that are resolved in a year or two once a case if filed, and are often settled sooner than that.
Civil rights cases, and personal injury cases which are really civil rights cases in disguise, take one of two typical courses. Many of them are resolved very early on in initial dispositive motion practice and are often dismissed within a few months to a year with complete dismissals on the merits (or for failure to prosecute by a pro se party, i.e. a Plaintiff bringing suit without a lawyer). The civil rights cases that aren't resolved that way can take much longer, in part because they are often prosecuted in federal court which is much slower than state court, in part because interlocutory appeals (i.e. appeals brought prior to a final trial and verdict) are common in civil rights cases, and in part because these cases are sometimes more complex and require lengthy pre-trial discovery and motion practice. I have one case that will probably go to trial soon about eight years after the underlying incident (that involved a handful of people over the course of less than two hours in one place) took place.
If everyone knew what I know as a governmental defense attorney know within two or three months of a case being filed, these cases could be resolved in six months and would be resolved more accurately than they are in jury trials. But, of course, part of the reason that I can secure this information so quickly is because the people from whom I receive the information know that what they share with me won't be used against them in court. Still, this observation does suggest that there is plenty of room for improvement in the process.
Also, a lot of the delay in civil litigation is a function of simply not having enough judges to keep their case loads small enough to allow them to make prompt rulings, and an overall litigation system that has adapted to that reality.
The quality of plaintiff's litigation
Another thing that my job gives me is a broad overview of the quality of the legal work done by the people who sue the City.
About half the lawsuits brought against the City are brought by pro se parties, or by lawyers whose legal work falls below the standard of care that should be expected from a reasonable competent lawyer.
Indeed, the best pro se parties (maybe the top 5-10% of them) are doing a better job of litigating their cases than the worst lawyers that we see (although no pro se parties do an excellent job). There are a few lawyers in the Plaintiff's bar who are so incompetent that I am amazed that they passed the bar exam, although even they have basic literacy and some understanding of the process. But there are plenty of pro se parties whose literacy and understanding of the process is below that of an average high school student, who would benefit from representation by even an only marginally competent lawyer.
One of the better arguments for a "civil Gideon" system in which indigent people would routinely be provided access to lawyers by the state, the way that indigent criminal defends are, is that it would make the delays and confusions caused by incompetent pro se litigants largely go away making the whole legal system work much more efficiently.
Cases brought by incompetent litigants overwhelming get dismissed early on, or settled for amounts far less than a competent lawyer could secure.
Incompetent litigants tend to be particularly weak at investigating a case and gathering facts to support it, and in understanding at a more than superficial level the relevant substantive and procedural legal requirements for proving a case of governmental liability. Now and then, they do the right thing despite themselves, however.
Of course, part of the failure rate among these litigants is an inability to accurately judge if they have a legally meritorious case. I have definitely seen cases that were winnable or could have secured a larger settlement, that don't because they are brought by incompetent litigants. But probably 80%-90% of the cases brought by incompetent litigants wouldn't have been brought at all by competent lawyers, who could have identified the weakness in those cases at the outset and not filed suit.
When I was in private practice, I probably turned away two or three potential clients a week, often potential clients who had heart wrenching stories of misfortune. But those potential clients either didn't have cases for which the legal system had a remedy, or had cases where the likely outcome of their cases with competent legal representation would provide them with less economic benefit than the cost of competent legal representation, and would have greatly disrupted their personal lives and eaten up huge amounts of their personal time.
And, by the way, incompetence by lawyers isn't restricted to sole practitioners with little experience. I've seen multiple cases of grossly incompetent litigation from medium to large plaintiff's law firms (some of which are household names due to their advertising or due to prominent cases that they have litigated) by lawyers with significant experience.
This isn't to say that all litigants against the City are incompetent. About half of lawsuits against the City are brought by lawyers whose work is at least up to the standard of a reasonable competent lawyer, and a minority but good share of litigants against the city are represented by lawyers whose work represents the best practices in this work, are highly competent, and have screened potential clients in such a manner that they have chosen to represent plaintiffs with meritorious cases.
At least one case that I have handled so far involved a plaintiff who was represented by two successive incompetent lawyers, only to have the case pass to a third, highly competent lawyer that salvaged the case with some smart litigation decisions and was able to secure a settlement much higher than what the previous incompetent lawyers came close to reaching.
Sadly, there is very little that a person thinking about bringing a lawsuit can do to determine if their lawyer is litigating competently or not. That's why we have a bar exam in an attempt to impose at least some minimum standards, but this gatekeeping isn't perfect.
Admission to the bar allows you as a lawyer to handle almost any kind of case (patent law is an exception, and some states set a higher standard to determine if a lawyer is allowed to represent defendants in death penalty cases), subject only to their own self-determination about their competence.
But while being admitted to the bar usually means that a lawyer meets basic standards of literacy and can find their way to the courthouse, with a vague understanding of how the process works, the vast majority of lawyers (I'm an extreme outlier in this regard), have a far more specialized legal practice and predominantly handle a fairly narrow kind of legal work.
Probably a majority of lawyers don't litigate any civil or criminal cases on a regular basis, and instead do transactional work, legal compliance work, or provide counsel to senior corporate officials in their day to day activities.
It is rare for a lawyer to represent both plaintiffs and defendants in personal injury work. It is rare for divorce lawyers or real estate lawyers to handle personal injury or civil rights cases. It is rare for commercial litigators to litigate personal injury cases. It is rare for probate lawyers to do personal injury or civil rights litigation. It happens. I'm an example of that. But it is rare.
Unlike physicians, whose regulators have imposed both a general threshold professional qualification to become an M.D., and an additional professional qualification to practice in a particular medical specialty, the legal profession has almost no secondary level of professional qualification to practice in a particular legal specialty, like personal injury litigation, or civil rights litigation.
Most specialist legal practitioners do develop special expertise in the area where they practice, from working as a junior lawyer in a firm that has that kind of practice, from taking continuing legal education classes in that field, from researching the law and procedure in their own cases, and from the school of hard knocks. But it isn't systemic or uniform among specialist legal practitioners who often have significant gaps in their knowledge of the best practices for handling cases in their specialty.
This can be a particular problem in civil rights litigation where the law is more complicated than in many other areas of law, and where firm sizes tend to be small, so that many practitioners have never worked as junior lawyers under seasoned senior civil rights lawyers to learn the ropes. A fair number of lawyers with this kind of practice went to law school because of, and are driven by, a strong commitment to social justice, but couldn't find an employer in a field relevant to their objectives out of law school. So, they never received the kind of mentorship that they needed to become competent in their field as a result and are prone to making big picture conceptual mistakes and to bad legal judgment that hasn't been honed by more seasoned practitioners.
1 comment:
Did Abe Lincoln pass the bar exam?
Post a Comment