President’s Message: The Disappearing Defense Lawyer: Still Here After 20 Years
When I first started practicing law 20 years ago I remember numerous discussions regarding changes in the legal practice and the Disappearing Defense Lawyer. Twenty years later I am pleased to report Defense Lawyers are present and active in Wisconsin. Property and Liability Insurance continue to be mandatory purchases for all responsible businesses and individuals. Every day individuals around our state present claims arising out of auto accidents, slip and falls, dog bites, and a host of other situations. Similarly, policyholders around the State continue to present claims for fires, floods, and losses caused by other perils. Twenty years ago I remember making the conscious conclusion that Defense Lawyers would be needed by the insurance industry in the future. While the challenges and changes for Defense Lawyers have been significant over the past 20 years, the profession has not disappeared and will not disappear in the foreseeable future.
That’s not to say that it’s the same as it was 20 years ago; both the practice of law and defense practice have changed significantly. The next 20 years will contain similar changes, many of which cannot be predicted now. However, I believe that 20 years from now there will still be lawsuits that need to be defended and claims that must be investigated and resolved. The claims professionals and defense attorneys who adapt to those changes will continue to have rewarding and successful careers.
Similarly, civil litigation has evolved significantly over the past 20 years and the changes will continue. Electronic filing is now mandatory in all state and federal courts. The next generation of lawyers will never know what it is like to rush a brief to the courthouse at 4:30 p.m. or to wait anxiously all afternoon to find out if the courier has delivered the Appellate Brief on time. Now the crisis is making sure your computer doesn’t crash while you’re trying to get the brief filed electronically before midnight. The more things change, the more they stay the same.
The sources of discoverable information have increased dramatically with the rise of social media, text messages, and e-mails. These changes are nothing new for our profession. If our profession adjusted to the telephone and personal computer, then we can adjust to the internet and other new technological developments. However, the changes in technology require Defense Lawyers to recognize the changes and adjust their practices appropriately.
Even more significant changes exist regarding the types of claims that are being presented and lawsuits that must be defended. Cars are getting safer. With automatic braking and lane deviation warnings, there is no doubt that there will be fewer lawsuits relating to auto accidents. However, the advent of technology to assist drivers is also an opportunity for more sophisticated claims. Ten years from now the next wave of civil litigation may be directly related to driverless cars. Claims professionals and defense attorneys must be aware of these coming changes and adjust their practices as the type of claims evolves.
As jury trials become rarer, Defense Lawyers must continue to adjust. The term Defense Lawyer is no longer synonymous with trial attorney. Most of the defense industry has become focused on discovery and mediation. Defense Lawyers must adjust to this change. The challenge is to maintain the skill and knowledge necessary to try a civil case while still recognizing the client’s desire to resolve many matters without a trial. The defense lawyers are not disappearing, but the way the cases are being defended is evolving.
There are significant and concerning challenges facing Defense Lawyers. In particular, I believe that tort reform is the most significant challenge to our profession. Insurance companies will continue to pressure Defense Lawyers regarding rates and billing. Finally, difficulties recruiting and retaining young attorneys will continue.
There are powerful national groups whose goal is to eliminate all tort liability. If these groups are successful, both the claims industry and Defense Lawyers will change radically. There are also groups working to maintain the current system. The challenge for Defense Lawyers is to strike a balance between advocating for the best interest of our clients without advocating ourselves out of a profession. All claims professionals and Defense Lawyers should monitor these issues closely. When appropriate, WDC and our members must intervene to protect our profession. Changes that promote fairness and efficiency should always be promoted. Changes designed to eliminate tort law must be opposed.
Pressure from insurance companies and corporate clients will not decrease in the foreseeable future. These clients have significant claims that must be defended. However, they will continue to scrutinize bills and attempt to reduce expenses. This does not mean that the defense practice is dying. Smart insurance companies recognize the value that good representation adds to their claim and their relationship with policyholders. Other insurance companies may need market forces, adverse verdicts, or Bad Faith Judgments to help them recognize the value of good representation. The challenge for defense attorneys is to continue to provide quality representation to insurance company and insured, while not undervaluing these important services. The challenge for the insurance company is to recognize what attorneys and firms add value through their defense work and to reward those attorneys and firms.
The final challenge to the defense profession relates to recruiting and retaining young attorneys. There is no doubt that millennial lawyers are more open regarding their efforts to strike a work life balance. We all struggle with this issue. Having open and honest discussions regarding requirements and expectations only help the profession. We owe these young professionals candid conversations regarding compensation and work requirements. More importantly, we must provide young attorneys with opportunities to see the interesting and rewarding portions of our practices. It is a lot easier to get excited and interested in our profession when you are attending court and going to depositions. Not all young lawyers want to develop a defense career. However, if we are open with young professionals regarding the obligations and benefits from a defense career, and provide them with opportunities to grow, we can prevent Defense Lawyers from disappearing for at least another 20 years.
In conclusion, Defense Lawyers are not disappearing. While the challenges faced by our profession will continue, a vibrant defense practice provides many rewards. The work is challenging and interesting. Over the past 20 years I have learned how aluminum cans are manufactured and the theory behind neurocognitive testing. I also know the anatomy of the back and can explain how a natural gas furnace operates. I have also had the opportunity to work with great people, including clients, experts, co-counsel, and opposing counsel. Our profession will continue to face numerous challenges, but I am confident that the Defense Lawyers will not disappear in the foreseeable future.
Frederick Strampe grew up in Wausau, Wisconsin. He graduated from the United States Military Academy in 1990 and served as an infantry officer in Germany. He returned to Wisconsin and received his law degree from the University of Wisconsin in 1997. Mr. Strampe specializes in civil litigation at Borgelt, Powell, Peterson & Frauen, S.C. He is the President of the Wisconsin Defense Counsel. Mr. Strampe has been recognized as a Wisconsin “super Lawyer,” and is a member of the America Board of Trial Advocates, ABOTA. He litigates high exposure cases, including claims involving deaths, severe permanent injuries, and significant economic damages.