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Switching sides: defenders become plaintiffs' attorneys

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Indiana Lawyer Focus

Bloomington attorney Mike Phelps was a successful defender for insurance companies for nine years. State Farm, Allstate, Monroe Guaranty – he represented some of the biggest names in the business. But a personal injury case that he won on behalf of the defendant caused him to question whether he was ready for a change. Phelps is now among a handful of lawyers in Indiana who’ve made the switch from defender to plaintiffs’ counsel.

Making the change
In 2005, Phelps represented a farmer defending a claim against his Allstate insurance liability policy. Phelps said that the farmer was clearing debris from his property and had piled cardboard boxes in a heap, doused them in gasoline, and asked a friend to burn the boxes. The friend was severely burned when the spark from his lighter caused an explosion.

“The jury found that despite all the facts, the farmer did not act negligently,” Phelps said. “And because of that, the plaintiff did not recover a dime.”

Phelps said he believed the injured man’s hospital bills exceeded $100,000.

ITLA“That case just really, really made me feel bad,” Phelps said. And while he was mulling over the outcome of that trial, he got a call from personal injury attorney Ken Nunn, inviting him to join his practice. Phelps seized the opportunity to reinvent his career.

Tess White had worked for several insurance companies in her 13 years as a defense attorney before she decided she wanted to head in a new direction.

“In 2008, after working for Liberty Mutual for about three years, I just felt like on the defense side that we weren’t really practicing law, and I was ready for a bigger and better challenge and decided to start my own firm and switch sides,” she said. She started the Indianapolis law firm White & Champagne with colleague Joan Champagne, who focuses on family law – a staffing choice that was practical, White said, because litigators don’t get paid until they win a verdict.

“The idea was that Joan would focus on hourly work, to keep the lights on,” White said.

Working for insurance companies was “more about being a cog in a corporate wheel,” White said. Her decision to begin representing plaintiffs was largely due to her desire to help individuals, rather than corporations.

Jon Schmoll’s decision to change sides was motivated by his respect for a peer.

“I think it was a situation where I had great opportunity to practice law with an attorney that I’ve known for a long time – Steve Langer – and I’ve always respected Steve for his competence, his work ethic, and his ethics,” Schmoll said.

Schmoll worked primarily on medical malpractice cases for Merrillville firm Spangler Jennings & Dougherty for nearly 42 years before joining Langer & Langer in Valparaiso. He said his work as a plaintiffs’ attorney isn’t fundamentally different than the work he performed on the defense side.

“I don’t think there’s a lot of difference… obviously the main difference is that the plaintiff has the burden of proof,” Schmoll said. He said that he thinks attorneys on both sides are working hard to help their clients, so in that respect, he sees their roles as essentially the same.

white-tess-mug.jpg White

Pete Palmer, partner with the New Albany firm Palmer Thompson Law, said he thinks clients increasingly expect attorneys to have clear allegiances. And Schmoll said, “The insurance companies make it very clear that you can’t be on both sides of the equation when it comes to doctors and hospitals.”

Peer reaction
Defenders-turned-plaintiff lawyers say that, despite the sometimes adversarial nature of trials, they haven’t experienced any significant criticism of their decision to switch sides. Just as athletes who play with intensity during a game are able to shake hands after the final buzzer sounds, opposing attorneys are also able to interact amicably at the end of a trial. In fact, Phelps tried several cases against attorneys from Nunn’s office before joining the firm.

Schmoll also said that he has not noticed any difference in the way his peers have treated him since switching sides.

He said that the professional relationships he built as a defender have endured, despite the fact that he may be representing different parties nowadays.

Job satisfaction
White seems to have found that human element that was lacking in her former position.

“It’s been much more rewarding, because I actually have a human being client that is depending on me to help them – somebody who’s never been through this process, who doesn’t know what to do, who’s injured, has bills mounting – so that’s much more rewarding, but it’s also more demanding.”

Phelps also has found in plaintiff work the personal interaction that was missing from his role defending insurance companies.

“I had a trial probably about a year and a half ago – my client was hurt really bad. To this day, he calls me on Christmas, he calls me on Thanksgiving to say, ‘Hey I appreciate it,’” Phelps said. “That’s something you don’t get from an insurance company.”•

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  1. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  2. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

  3. Low energy. Next!

  4. Had William Pryor made such provocative statements as a candidate for the Indiana bar he could have been blackballed as I have documented elsewhere on this ezine. That would have solved this huuuge problem for the Left and abortion industry the good old boy (and even girl) Indiana way. Note that Diane Sykes could have made a huuge difference, but she chose to look away like most all jurists who should certainly recognize a blatantly unconstitutional system when filed on their docket. See footnotes 1 & 2 here: http://caselaw.findlaw.com/us-7th-circuit/1592921.html Sykes and Kanne could have applied a well established exception to Rooker Feldman, but instead seemingly decided that was not available to conservative whistleblowers, it would seem. Just a loss and two nice footnotes to numb the pain. A few short years later Sykes ruled the very opposite on the RF question, just as she had ruled the very opposite on RF a few short years before. Indy and the abortion industry wanted me on the ground ... they got it. Thank God Alabama is not so corrupted! MAGA!!!

  5. OK, take notice. Those wondering just how corrupt the Indiana system is can see the picture in this post. Attorney Donald James did not criticize any judges, he merely, it would seem, caused some clients to file against him and then ignored his own defense. James thus disrespected the system via ignoring all and was also ordered to reimburse the commission $525.88 for the costs of prosecuting the first case against him. Yes, nearly $526 for all the costs, the state having proved it all. Ouch, right? Now consider whistleblower and constitutionalist and citizen journalist Paul Ogden who criticized a judge, defended himself in such a professional fashion as to have half the case against him thrown out by the ISC and was then handed a career ending $10,000 bill as "half the costs" of the state crucifying him. http://www.theindianalawyer.com/ogden-quitting-law-citing-high-disciplinary-fine/PARAMS/article/35323 THE TAKEAWAY MESSAGE for any who have ears to hear ... resist Star Chamber and pay with your career ... welcome to the Indiana system of (cough) justice.

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