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Brooks Schuelke
Brooks Schuelke
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The Value of Listserves

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Earlier this month, there was an interesting exchange between Des Moines personal injury lawyer Steve Lombardi and Carolyn Elfant, a well-respected lawyer blogger, on the value of listserves. Like many situations, listserves have become popular in the practice of law. The listserves range from formal nation-wide groups to informal groups of friends that e-mail one another to exchange ideas on various topics.

The “debate” started with a post by Lombardi. Elfant responded. And then Lombardi had a reply.

I don’t want to mis-paraphrase, but I understand the gist of Lombardi’s complaint to be that listserves foster lazy lawyers to simply ask the members of their various listserves for briefs on items instead of doing the research to make sure that the law they eventually end up citing is correct. As I understand it, he’s worried about lawyers getting a brief and then cutting and pasting it without checking to make sure that the brief has good law and makes the best arguments available.

I won’t deny that Lombardi’s complaint is a potential problem, but that’s not a problem with listserves as much as it is a problem with lazy lawyers. Whether listserves exist, lazy lawyers will have ways to cut corners. Whether it is outdated form books that the lawyers don’t take the time to update or blind reliance on a form found on the internet (and lawyers can steal other briefs as easily as high school students can steal essay papers), there is always the potential to abuse a tool. But that’s not an indictment of the tool.

On the contrary, I think listserves can provide huge value to members. I am a member of several listserves, and I can easily say that each of them has added great value to the services that I provide to my clients.

I think listserves are particularly helpful to plaintiffs’ lawyers, who traditionally practice in smaller offices. Big-firm lawyers can always go down the hall to bounce ideas off colleagues, ask colleagues to review and critique briefs, seek out prior briefs on subjects, etc. Small firm lawyers generally didn’t have that luxury until the listserve came around. Now, I can brainstorm on issues or have an important motion reviewed by dozens of other trial lawyers. Some suggestions are valuable, some not. But the process itself is critical.

Listserves also help participating attorneys stay on top of hot button issues of law. For example, in Texas, one of the hot topics and sources of frustration right now is subrogation. Acting as a small firm lawyer, I’d be on my own to stay on top of the law, develop my own forms, and keep track of how different insurance companies are dealing with this changing issue. But listserves have changed that. Plaintiffs’ lawyers can use listserves to stay on top of the law, exchange nuances and interpretations of cases so we can craft the best responses, and exchange results of how different insurance companies (and even different reps within insurance companies) are handling these issues. There is no doubt in my mind that attorneys on the listserves I’m on are better equipped to negotiate subrogration settlements with insurance companies than attorneys that are muddling through it on their own.

Listserves also allow us to share our expertise on matters. I have developed a couple of strategies that have been very successful for me that I’ve shared on listserves and have helped others. Likewise, I have a friend that has an absolutely brilliant argument on a subject that he has routinely shared on listserves. It’s a unique interpretation of a statute that I don’t know I would have thought of, but by spreading it on listserves, the argument has been used to save clients tens or even hundreds of thousands of dollars. And we’re not alone. Listserves allow lawyers to share their expertise, successful strategies, etc to other members of the bar.

I think listserves are also important to protect plaintiffs’ as a whole. We are all better off when all attorneys are making the best arguments possible on behalf of their clients. Judges want to be consistent. And I don’t want to be in a position where a judge rules against me on an issue because he has previously ruled against other lawyers on the same issue because the previous lawyers didn’t make the best possible arguments. Unfortunately, this not only occurs, but tends to happen on new areas of the law where there is little appellate law to guide the process. The plaintiffs’ bar is better served, in my opinion, not by keeping our work-product secret, but by sharing it with one another to make sure that we’re all protecting our clients as best we can.

I could go on an on with other values. I really think being in a listserve or some other informal group is important enough that clients should ask their potential attorneys what they do to collaborate with others.

Having said all that, I don’t want to minimize Lombardi’s concern. Simply stealing forms without researching the law is malpractice waiting to happen. But that’s not a problem unique to listserves, and it’s not a reason to stay away from or withdraw from listserves depriving your clients of others’ expertise and others’ clients of your expertise.