Once again, let’s delve into what I term “litigation train wrecks,” specifically focusing on the variety I frequently encounter: non-compete disputes, trade secret misappropriation, partnership dissolutions, and unfair competition cases, predominantly from the defense perspective.
Over the past decade, my firm has handled nearly two hundred cases within this arena. Furthermore, we’ve taken over more than a dozen cases already embroiled in litigation, many exhibiting varying degrees of “train wreckage.” It’s a pattern we’ve seen repeatedly, and understanding the signs of a “Train Wreck Lawyer” is crucial for businesses facing litigation.
The Usual Suspects in Litigation Train Wrecks
In these scenarios, the corporate plaintiff is typically the dominant entity, often represented by BIGLAW firms. These cases frequently operate under a “spare-no-expense” mentality, aimed at crushing the competition – a blank check situation that’s a billable hour dream for BIGLAW. The defendant, conversely, is often a privately held company, perhaps with moderate or even substantial resources, but lacking in legal sophistication. This power imbalance can be a breeding ground for litigation mismanagement, especially when a “train wreck lawyer” is in the mix.
This situation frequently arises in rapidly growing companies. They possess financial capital but lack the necessary legal infrastructure and expertise to effectively manage risks and navigate complex legal challenges. Foreign companies entering the American legal system without prior experience are also particularly vulnerable. They may inadvertently hire a generic BIGLAW or MIDLAW commercial litigator type who, while seemingly qualified, lacks specific subject matter expertise in areas like trade secrets or non-competes. This mismatch between lawyer skill set and case requirements is a hallmark of cases heading towards “train wreck lawyer” territory.
The Absence of a Strategic Roadmap: A Key Indicator of a Train Wreck Lawyer
A critical flaw in litigation train wrecks is the absence of a coherent strategy. Regardless of whether you are the plaintiff or defendant, a well-defined litigation strategy is paramount. Ideally, you should be the driving force in the case, acting proactively rather than reactively. However, in “train wreck lawyer” situations, defense counsel often lacks a strategic approach and fails to take the initiative. They become purely reactive – waiting for the plaintiff to act and then responding, essentially playing a perpetual game of legal “whack-a-mole.” This reactive posture is a telltale sign you might be dealing with a “train wreck lawyer.”
The “Throw in the Towel” Defense: The Hallmarks of a Train Wreck Lawyer
Consider a recent case in the United States District Court for the Southern District of Florida, involving non-compete and trade secret allegations. The plaintiff had already secured an ex-parte temporary restraining order, loudly demanding millions in damages and even hinting at criminal charges. For experienced litigators, this is standard playbook – not particularly alarming. We’ve encountered such tactics countless times. The approach is to systematically address the issues and resolve them.
However, many lawyers who claim to specialize in this type of litigation are, in reality, ill-equipped to handle the pressure. At the first sign of serious conflict or discomfort, their instinct is to concede. But capitulation is never a viable defense strategy. This “roll-over” mentality is a dangerous trait in a lawyer, and a strong indicator of a “train wreck lawyer.”
Even in cases where settlement is advisable due to unfavorable circumstances, experience dictates that achieving reasonable terms immediately is almost impossible. Few opposing parties are inherently reasonable, barring perhaps myself. This necessitates a period of active litigation to shift the other side from their initial, often inflated, position. A “train wreck lawyer” often lacks the tenacity and strategic thinking to navigate this crucial negotiation phase.
In numerous cases, the corporate plaintiff’s claims are, frankly, baseless. I’ve witnessed countless frivolous non-compete and trade secret lawsuits. If I were to submit a single false statement to the court, my professional standing and license would be in jeopardy. Yet, large corporations routinely fabricate claims about non-existent trade secrets, and this seems to be somehow tolerated, or at least treated differently. This double standard underscores the importance of a robust defense against potentially meritless claims, something a “train wreck lawyer” is unlikely to provide.
Let’s estimate that 70% of these cases are built on flimsy grounds, while 30% have some plausibility. Regardless, the defense must aggressively challenge the plaintiff’s initial stance. Leverage is essential. Even in cases with some merit, I’ve seen corporate plaintiffs drastically reduce their demands – from $4 or $5 million down to $1 million – once they realize they are facing a determined and capable adversary. This demonstrates the power of a strong defense, something fundamentally absent when you’re stuck with a “train wreck lawyer.”
In the majority of these cases, the plaintiff’s core argument is weak. The alleged “trade secret” might be a publicly available customer list easily found through a Google search, a formula common knowledge within the industry, or software purchased from a third-party vendor who sells it widely. However, there will invariably be some unfavorable facts, often irrelevant to the core merits of the case, serving merely as distractions. A common example: An employee may have taken documents from their former company, but these documents are essentially worthless. What’s the typical reaction of a “train wreck lawyer”? They panic, exclaiming, “This looks terrible! We should just give them whatever they want.” This is not a defense strategy; it’s a surrender, and unfortunately, it’s a common scenario with “train wreck lawyers.”
Maintaining Perspective: Why a Train Wreck Lawyer Lets Plaintiffs Control the Narrative
This approach allows the corporate plaintiff to remain detached from reality. Remember, the plaintiff might be irrationally demanding $5 million for a “secret customer list” readily accessible online. This position is delusional, though perhaps understandable given the pro-corporate inclination of the American legal system. It’s crucial for the defendant to push back and expose the absurdity of the plaintiff’s initial claims. But immediately surrendering and offering millions reinforces the plaintiff’s distorted perception, which is precisely what a “train wreck lawyer” inadvertently does.
In fact, this capitulation doesn’t just allow the plaintiff to maintain their unrealistic view; it solidifies it. By immediately conceding, the defense validates the plaintiff’s inflated assessment of their case. It’s a paradoxical situation where the adversary, normally viewed with suspicion, is suddenly believed when they say what the plaintiff wants to hear. Ultimately, litigation, like many things, boils down to psychology. A “train wreck lawyer” often fails to grasp this psychological dimension of legal battles.
The Discovery Quagmire: A Playground for Train Wreck Lawyers
Discovery is often where “train wreck lawyers” truly derail a case. Many defense lawyers are ill-equipped to handle both the intricacies of these specific types of cases and the aggressive discovery tactics employed by BIGLAW firms to inflate costs for the defendant. The principles of discovery are straightforward. As a defendant, one must: (a) conduct their own proactive and targeted discovery; and (b) prevent the plaintiff from turning discovery into an excessively broad and expensive fishing expedition; while (c) maintaining reasonable positions, adhering to procedural rules, and avoiding discovery-related penalties or sanctions. Navigating this delicate balance is beyond the capabilities of a “train wreck lawyer.”
The typical “train wreck lawyer” scenario unfolds as follows: The defense lawyer lacks experience in this specific type of litigation. The plaintiff’s lawyer issues unreasonable discovery requests. The defense lawyer, true to their “cry uncle” strategy, essentially agrees to provide everything requested, including, for instance, the collection of 77 laptops, most of which are clearly irrelevant. Sometimes, the defense lawyer even stipulates to overly burdensome discovery obligations to avoid a hearing on discovery disputes or a preliminary injunction. This reflects a “let’s make a bad deal to avoid confrontation” mentality – a hallmark of a “train wreck lawyer.”
The consequence? The defendant becomes obligated to comply with excessive discovery demands that are virtually impossible to fully satisfy. The plaintiff’s lawyer then escalates, alleging discovery violations, failure to produce documents, and demanding sanctions and contempt orders. The focus of the case shifts entirely from the actual merits – the alleged trade secrets – to discovery disputes. This is precisely what BIGLAW firms relish, as it becomes a goldmine of billable hours. This transformation of the case into a discovery circus is a classic symptom of a “train wreck lawyer” at the helm.
The plaintiff’s counsel narrative becomes: “This case is massive! They stole your trade secrets! This could be an existential threat to your company. We must spare no expense and investigate every possibility. Who knows what they took and how they might use it against you? Be very afraid – afraid enough to give us unlimited resources for a WWIII-level discovery effort, 99% of which is completely unnecessary. But we are BIGLAW. We have a reputation. If you don’t let us conduct this exhaustive discovery, don’t blame us if things go wrong. You have to trust our judgment, even if you don’t fully understand the complexities.” This fear-mongering tactic, coupled with unchecked discovery, is a common tool used against defendants unfortunate enough to be represented by a “train wreck lawyer.”
As the case drags on, the plaintiff becomes increasingly invested in recouping their mounting legal expenses, especially the exorbitant discovery costs. This further entrenches their position and escalates their willingness to pursue the case relentlessly, generating even more billable hours for their BIGLAW firm. It’s a self-perpetuating cycle, perfectly designed to maximize legal fees, often at the expense of justice and reason, and expertly navigated by BIGLAW against those saddled with a “train wreck lawyer.”
The Aftermath of a Train Wreck Lawyer: Picking Up the Pieces
My firm receives 3 to 4 inquiries every week from businesses entangled in these “dumpster fire” cases. These situations are invariably complex and messy. I avoid phone consultations until a prospective client formally engages us to review their case, conduct a thorough analysis, and provide strategic recommendations. It’s not my role to provide free advice or act as a pro bono “dumpster fire” consultant. The reality is, these cases are often incredibly challenging to salvage, precisely because of the mismanagement by the previous “train wreck lawyer.”
In fact, cases inherited mid-litigation are often more difficult to resolve than those we handle from the outset. When we are brought in after 18 months or two years of mishandling and compounded errors, the situation is significantly more complex and fraught with peril. The damage inflicted by a “train wreck lawyer” can be substantial and long-lasting.
Solutions and Costs: Moving Beyond the Train Wreck Lawyer
Sometimes we agree to take over these cases and attempt to rectify the damage. Other times, we decline, either because we see no viable path to resolution or because we determine that the client themselves might be problematic to work with. A common lament from these clients is the significant sums already spent – $500,000, $750,000, or even $1 million – leading to a sense of profound unfairness. And indeed, the American litigation system can often feel like a “racket” – unfair and burdensome.
However, these past expenditures are sunk costs and irrelevant to our fees. Clients understandably want to know: “What will it cost to fix this mess?” The more severe the “train wreck,” the more complex and expensive the triage. Each case is unique, but a minimum fee of $200,000 is typical for these types of interventions. Having navigated these situations numerous times, I estimate that many “train wrecks” can be resolved for between $200,000 and $400,000 in attorney fees, plus costs depending on the necessary scope of discovery (which often needs to be, and can be, significantly curtailed). The goal is to achieve a walkaway or settlement on reasonable terms, often involving manageable payments over time.
Jonathan Pollard is the founder of Pollard PLLC. Pollard and his colleagues have litigated many high stakes cases with a focus on non-compete, trade secret, and unfair competition cases. The firm is ranked in Chambers & Partners and has offices in Fort Lauderdale, Miami, and St. Louis. Pollard PLLC can be reached at 954-332-2380.
