Minnow v. whale 

You’ve got to be crazy to be a plaintiff’s lawyer. Honestly. What we do to survive would make any economics professor regurgitate his latté and poppyseed muffin. 

I get a call, and it goes something like this:

“Hello, my son’s had a horrible reaction to this drug, and he’s in intensive care; the doctors don’t know if he’s going to make it.”   

“Do you know the name of the drug?” 

“Evil product X.” 

“Yes, I’ve had a lot of calls about Evil product X. There does seem to be quite a few reports of bad reactions. I think I may be able to help.” 

“I don’t have much money, so I don’t know if I can pay you.” 

“No problem, ma’am, I work on what’s called a contingency fee. I get a third of any gross settlement and any expenses that I front. If I don’t succeed in getting your son fair compensation, I get nothing.” 

I get nothing. 

Let’s think about this statement, something I have lived by for 20 years. I will spend my own money, time, and office resources going up against some of the largest, nastiest, most ruthless corporations on the planet. I will spend tens of thousands of dollars ordering medical records, hiring experts, and pore over literally hundreds of thousands of pages of documents, just to determine if I have a chance in hell of helping this lady and maybe, maybe making a fee.  

Hey Mr. Bayer, Mr. Pfizer, Ms. Merck, you mind if I file a lawsuit trying to stop you from killing people with your multi-billion-dollar blockbuster drug? Oh, my name?  Tim Maloney. I’ve got an office on the South Side of San Antonio. No, not really a big firm, just me and Paulie, my best friend since first grade, and Dr. Swartz, who helps out on occasion. Your lawyers? Fulbright & Jaworski, Vinson & Elkins, Jones Day. And you’ve given them a blank check to money-whip me to death?

So the fun begins. I get 22 hard drives containing three terabytes of intentionally disorganized documents.  I look at my paralegal, who is subtlely eyeing the want ads and wondering if she can still fit into the cocktail-waitress uniform.  So you work until midnight for two months, trying to make some sort of sense of the clinical trials, the adverse events, the coded emails, and the endless reams of data regarding liver enzymes and creatinine levels. 

These are the times I look at myself in the mirror and wonder what the hell I have done. I’ve burned through the line of credit, fallen two months behind in my mortgage, dodged the repo man …

Then it happens; usually you go right past it the first time. But you re-read and sigh and say, “Those dirty bastards!” Then the fun really begins. I send a letter to the defense counsel informing them of the email that I have found. The next day I receive a 100-page motion for summary judgment, motions to prevent disclosure, trade-secret objections, and inadvertent production based upon attorney-client privilege. However, if you are in a court with a judge who has a stomach, backbone, and courage — they do have to run for reelection, you know — you may be allowed to start making a nuisance of yourself by deposing the company’s science directors, clinical trial doctors, or even a division president or two. Then you get the call. 

“Your case ain’t worth a shit, Maloney, but it’s costing us more to defend than it is to pay you, so why don’t you fly up here and we’ll talk.” 

Oh, the talk.   

I’ve had a few talks in my day. One of the most interesting was in Kansas City on a drug case involving Rezulin, a liver shredder that I hope I had a little bit of input in getting pulled from the market. I represented about 20 people who were either in liver failure, had a transplant, or had died. I shipped 30 boxes of medical records to show how serious I was and roomed at the $99 Staybridge, hoping that the American Express would go through. I walked in alone, and I was met by 20 young, lean, eager sharklets, along with a few John Cornyn looking senior partners.  I looked around the room and said, “Fellas, this is your one chance to make this right or else I’m really gonna start getting pissed.” That actually got a laugh, and after going through each file, we got it resolved. Then came the zinger. 

The confidentiality agreement. 

The hardest thing in the world a plaintiff’s lawyer has to sign is a confidentiality agreement. If you settle a case, you generally can’t talk about it. There are exceptions, and in some circumstances you can hold out, but most of the time, you’re getting paid to keep quiet. Let’s say you have in your hand something that reads like this: “We know our product will kill 500 hundred people this year, but it would cost too much to fix it.  So we wait for the lawsuits, defend the hell out of them, shake out the weaklings, and settle the real ones.”

Children, those can be dark days, because your job is to represent your client at all costs, and if you got a kid with tubes sticking out of his arms and looking at $5 million in future meds, you sign it, and find the nearest, darkest bar. 

But why not just say the hell with it? I’m going to do the right thing and expose to the world this travesty! Go ahead. And the kid you represent, the one who needs 24/7 care for the rest of his life, what happens to him? His parents file bankruptcy, he gets shuffled off to an overcrowded Medicaid rehab center, and the company gets to sue the poor bastard they put in a coma.

Of course, you want to leak it, or meet a reporter on the fifth floor of a parking garage.  But you can’t, because the only thing that matters is your client.  So you go home knowing that there is a good chance someone else is going to die, and there’s not a damn thing you can do about it. •

Yes, that Tim Maloney. His next column will appear June 2.

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