In this episode of Civilly Speaking, host Sean Harris talks with Toledo attorney Katie Harris. Before becoming a plaintiff attorney, Katie worked for the courts and spent a few years in insurance defense. With her background, Katie brings a unique perspective to the plaintiff side and shares how her work experience impacts her practice today.

Sean: Hello I’m your host, Sean Harris, and this is episode 60 of Civilly Speaking, brought to you by the Ohio Association for Justice. Today is May 21st, and I’m here with our guest, Katie Harris, an attorney from Toledo, Ohio. Katie, thanks very much for joining us here on Civilly Speaking.

Katie: Hey Sean, thanks for having me. I’m excited to do this.

Sean: And Katie, I see you and I have the same last name. We should explain to the listeners out there that you are my aunt.

Katie: Yeah, no, not your aunt.

Sean: Oh.

Katie: I am married to your brother.

Sean: Oh that’s right.

Katie: Yes, the Harris family is something else.

Sean: Representing. So, you are currently a plaintiff’s lawyer and a member of OAJ, but that was not always the case. You came from the dark side. Talk to us about how that happened and why that happened.

Katie: So I initially got into insurance defense about three or four years into my career and it wasn’t because I had some burning passion for helping insurance companies not pay people. It was more that I wanted to get into litigation. I had spent three years at the courts and, you know, it was time for me to move on and actually start doing these cases. And I had a friend who reached out that her firm was hiring and seemed like a good opportunity and, you know, I am going to be honest, I learned a lot. I think that the firm I was with was a good firm and I had a great you know, I had some great mentors there who were able to teach me the basics of litigation, but man not long into it I just really didn’t like what I was doing. You know, I was good at it and I was getting good results but I felt really badly about those results sometimes and I think the kicker for me was when I went and I did a we had almost a two-week trial or something like that I had helped with a lot. And we’ve got a defense verdict and as soon as we got the verdict, I felt horrible and I thought to myself, I would rather represent plaintiff’s and lose than get another defense verdict. Immediately after that, I was thinking, what can I do to position myself to move on to the other side and not have to do this anymore?

Sean: Although I suppose working as a plaintiff’s lawyer, you can still get defense verdicts.

Katie: You know, that’s true. But at least now I feel like I’m using my skills for the right side, at least for me. I mean, I know good people in the defense bar as well. But it’s you know, it wasn’t a fit for me and I knew that pretty clearly so I was really very grateful when I got an opportunity to move into representing plaintiffs.

Sean: Are there things that you learned in the insurance defense world that help you now?

Katie: Oh, yeah, absolutely. I mean, I think one of the main things, especially locally here in Toledo, is just that I have a really good relationship with a lot of the attorneys that we run into all the time on our cases. You know, they know me from the work that I did previously in addition to the work I’m doing now and they know that they can trust me and they also know that I am going to work really hard and that the effort I’m going to put into it is going to be significant. I also know a lot of the insurance adjusters.  So, what that has helps me with is particularly on cases where we’re trying to say just how can we get them offer the policy limits so we can wrap this up for our clients with a lot of these adjusters I know exactly what they’re going to be looking for to prompt them to say, okay, yeah, this is a limited case let’s get it done. And I found that really, really helpful in a lot of our files for sure. Well, it’s weird to sit here trying to work a plaintiff’s case, at least at the beginning, I was always thinking, okay, well, I know what they’re going to think about all of these medical records and everything, and that’s still crops up so, you know, I think it’s just it’s helpful to know how they will interpret everything, because it helps me think about how to frame it more favorably and also advise the clients on what will insurance perspective will be and what we’re going to be up against.

Sean: How about your perspective on dealing with defense counsel on our cases these days?

Katie: You know, it’s interesting because I think that, I mean, first of all, say, I don’t know defense counsel well in other parts of the state. The lawyers I know in Toledo, I know pretty well. I think for the most part, what I try to keep in mind when I’m dealing with them is that and you may disagree with me on this, Sean, but most of them are not approaching the cases like it’s their own kids’ college fund that you’re after. A lot of them are just people that are trying to do a job and they’re trying to evaluate the claims fairly and we’re, of course, going to disagree, a lot sometimes and there’s a lot of battles we’re going to need to fight as we progress through the case but, you know, I think there’s a lot of challenges that they’re up against and I understand what they’re dealing with on the insurance, the insurance adjuster side of things and the hoops that they’ve had to jump through that sometimes can give me a little bit more understanding of why they can be difficult at particular times. One of the things that comes to mind is I think sometimes as plaintiff’s counsel I’ll look at a motion for summary judgment or something come in and I’ll say, why did they file this? They’re going to lose. I don’t understand why they’re even spending their time on this. Well, you know, there were at least two times I can think of that we had a case going, an insurance defense case going and they had me look into whether or not we would win on summary judgment. And I did the research and I told them, yeah, we’re not, we’re not going to win this. And the response in some of those cases was, well, why don’t you go ahead and file it anyway and we will just see what happens?  So that was always fun. But usually, yeah, I mean, it’s interesting. I don’t exactly understand what makes them, what makes the insurance companies do something like that but it can be frustrating to be in a position of saying, well I’m the lawyer here, I’ve done the legal work, I’m telling you this isn’t going to get you the result you want and then just essentially, you spend a bunch of time and the result turns out the way you told them it would and you end up settling the case down the road for, I mean from their perspective for probably more than they would have settled it for initially.

Sean: You mean clients don’t listen to their lawyers?

Katie: No and it’s not just the insurance adjusters who don’t either. So, when and I’m thinking in the context of auto accidents, which is what I wound up doing a lot of at my defense firm, the clients just don’t want to listen to anything you have to say and this is the actual client, the tortfeasors, the at fault drivers. So these are people who got in an auto accident two years ago, in most cases, and then they get a lawsuit in the mail and they get an attorney they’ve never heard of before reaching out to them out of the blue and they’re sitting there going, well, what the heck I thought my insurance was going to handle everything? They’re angry that they’re being sued and they just don’t want anything to do with it. So, it’s I mean, getting those people to answer discovery can be really, really difficult. Getting them to cooperate can be really difficult. So, it’s, I remember being very frustrated often by on the one hand I can’t get a hold of my actual client and on the other hand, I’ve got an insurance adjuster who’s got all these hoops that I’m trying to jump through, but also doesn’t even necessarily want to approve my invoice for all the time that I’ve spent trying to track down the client.

Sean: Well, and you mentioned jumping through hoops for insurance adjusters. For those of us who haven’t worked on that side, what do you mean by that? What kind of hoops are you jumping through?

Katie: I mean, it’s basically every single thing is run through the adjuster. You don’t have necessarily the discretion to say, I want to do this, I want to do this. It’s everything is structured by how the insurance company wants to proceed. So do you want to do a records review? Do we want to send them for a medical examination? When do we want to do the deposition? Do we want to file a motion or not file a motion? It’s, you are giving them your input, but at the same time that they have the final say on everything, which can be frustrating in a lot of instances.

Sean: Katie, in addition to spending some time in an insurance defense firm before that, you also spent some time working in the court. Tell us about that and what kind of perspective you gained from that experience.

Katie: Yeah, I really liked working for the courts. I definitely prefer being out litigating, but for a start to a career, it was just a fantastic learning experience. I worked for the magistrate judge here in Toledo, Judge Knepp who I think is going to get into the district judge position coming up here in a few months. But I also work for two of the judges at the Lucas County Common Pleas Court. I think that one of my perspectives and I will preface this by saying I don’t know if we’re just very lucky with our judges in Toldeo or what the situation is, because I know that firm litigators have had different experiences, but I worked for judges that on paper or their credentials or whatever were quite different as far as what their political beliefs were, what parties they work or not worked, what parties they voted with or were endorsed by and honestly, my experience with the judges I have worked for has been not that politics comes into play in their decisions at the trial court, that they’re genuinely trying to get it right and sometimes they get it wrong. But they’re, in my experience, trying to be very thoughtful about it and they understand that what’s going on is important to the litigants and to the attorneys and they’re just really trying to work through those issues. Are they always going to get it right? No. But in my experience, it hasn’t been that they’re actually having politics or policy beliefs or their own personal things coming in and affecting the decisions they’re making. The other thing is that at the end of the day, they’re people, too. And I think that’s one of the biggest things that I have taken away from working for judges, is that when I walk into a courtroom and o’m having a pre-trial or having a hearing on something and the judges is going through everything that the attorneys. It’s I don’t know. It’s hard to explain. But I think being able to take a step back from the moment and think about the actual people that you’re dealing with, both the defense attorney and the judge, being able to keep the perspective that, you know, we’re all people here, we’re all trying to do a job and work through this case in our various roles I think it’s really helpful.

Sean: You are including defense lawyers in the class of human beings.

Katie: I will go on record as including defense lawyers in the class of human beings.

Sean: Alright, I just wanted to make sure we’re clear about that.

Katie: Yeah.

Sean: Talk about discovery, discovery disputes and how those are I mean, I think we know that courts generally frown on them and are loath to get involved. But what did you see?

Katie: Yeah, I think it’s funny because every single so I’ve worked on the judicial side of things. I’ve worked on the defense side of things. Now I’m on the plaintiff’s side of things and every single place I’ve been, everyone seems to hate these discovery battles. And we know that they have to happen, but they just seem to annoy everybody. And honestly, on the judicial side of things, it’s frustrating because it seems like lawyers never got, they were never more petty with each other than over discovery disputes. And it just, I know that these have to happen, that we’ve got to get the information we need in order to pursue our claims and, you know, there’s stuff on the defense side, too, that they often think that they need to get from us. But it’s just always, I shouldn’t say always, but it frequently seems to devolve into people just kind of sniping at each other over everything and judges really don’t like to get involved. There’re reasons that they want you to do everything you possibly can to try to get it fixed and figured it out before getting them involved. They’ve got a lot on their plate, particularly the county judges. They’ve got busy dockets and a bunch of discovery motions or you’ve got a motion to compel and then opposition and cross motion for a protective order and all of this stuff, it makes their dockets very messy. And the staff attorney that has to work on it becomes quickly miserable trying to wade through everything.

Sean: Well, and speaking of discovery disputes, I note that the concept of proportionality in discovery, which has been is part of the federal rules, will be coming to Ohio, coming to a state court near you. I guess you would not have been excited to have that on the books when you were at the court.

Katie: No, not at all. And I can tell you, I already can think of the defense attorneys I know in town who as soon as they know this is on the books, I know they’re going to add it to their form objections. I mean, I just know I can already picture it. I can picture their exact form discovery the way it looks now and I can see that added into the objection. So I know it’s going to be there. I know they’re going to use it. And I know that we’re going to have to get into some of those disputes about it. When I worked at the courts, I mean, I really can’t imagine. I can’t imagine why courts want to deal with this. It’s just so baffling to me because they know that it’s going to be asserted. They I know it’s going to be fought about and they don’t like discovery disputes. So it’s just for me, it’s very confusing as to why they want to open this whole thing, because it’s just going to lead to more emotions and more of that lawyers sniping back and forth each other. And frankly, I think it would have been a nightmare to try to make a decision on that at the trial court level. When I worked at the courts, one thing would be that and this happened more frequently than you might think, but I would so frequently find that lawyers would use a quote that looks really, really great from the case.  And then I would go and pull up the case and I would realize that it only makes sense if you read it completely out of context and that actually doesn’t support what they’re saying at all when you read it with the entire case. I wish that that didn’t happen as much as it did. But just please don’t do that. Anybody that’s writing a brief, please don’t do that. And make sure your associates aren’t doing it either.

Sean: Oh, I never thought that the court had enough time to actually go look at the cases.

Katie: Oh, yeah. No. Well, the judge doesn’t, but the staff attorney or the law clerk who’s working on it is going to pull the case. At least I always did. And there are times that I’d read it and go, oh, boy, that’s not, that’s not good. And the other thing that I always tell people now is that, you know, I think we read a motion or a response or something, and we get really, really mad and say, well, this motion is terrible. Their position doesn’t make any sense. Probably in more colorful language the first time we read it. But I always have told people that say whatever you want to about their arguments in the first draft and then take all of the snarkiness out of it before you send it to the court. I think it can feel good to try and get some little punches in there, but if their arguments are really as bad as we think they are we can point that out without being trying to be clever or funny in a way that just kind of comes across as insulting and not really necessary for the judge. They don’t need to read us puffing our chest and talking about how stupid the other side’s argument is.

Sean: Well and that’s a good point. I had a paralegal many years ago that taught me an important lesson and that is when people are idiots, you don’t have to point that out because they pointed out themselves.

Katie: That’s one hundred percent true. That’s exactly the way I look at it. So I always say, you know, and I’ll do this myself, just put what you need to in the first draft or write it in the margins if you’re reading through their brief for the first time, but don’t let that stuff get in front of the judge. It doesn’t help you and it’s I wouldn’t say that it hurts you, but, you know, it just it’s not helpful.

Sean: Well, Katie Harris, thank you for being here on Civilly Speaking.

Katie: Thanks so much. Happy to do it Sean.

Sean: And thanks to all our listeners out there. If you like our show and want to learn more, check out civillyspeaking.com and please leave us a review on iTunes and we’ll see you here on the next episode of Civilly Speaking.