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Switching sides: defenders become plaintiffs' attorneys

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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. The voices of the prophets are more on blogs than subway walls these days, Dawn. Here is the voice of one calling out in the wilderness ... against a corrupted judiciary ... that remains corrupt a decade and a half later ... due to, so sadly, the acquiescence of good judges unwilling to shake the forest ... for fear that is not faith .. http://www.ogdenonpolitics.com/2013/09/prof-alan-dershowitz-on-indiana.html

  2. So I purchased a vehicle cash from the lot on West Washington in Feb 2017. Since then I found it the vehicle had been declared a total loss and had sat in a salvage yard due to fire. My title does not show any of that. I also have had to put thousands of dollars into repairs because it was not a solid vehicle like they stated. I need to find out how to contact the lawyers on this lawsuit.

  3. It really doesn't matter what the law IS, if law enforcement refuses to take reports (or take them seriously), if courts refuse to allow unrepresented parties to speak (especially in Small Claims, which is supposedly "informal"). It doesn't matter what the law IS, if constituents are unable to make effective contact or receive any meaningful response from their representatives. Two of our pets were unnecessarily killed; court records reflect that I "abandoned" them. Not so; when I was denied one of them (and my possessions, which by court order I was supposed to be able to remove), I went directly to the court. And earlier, when I tried to have the DV PO extended (it expired while the subject was on probation for violating it), the court denied any extension. The result? Same problems, less than eight hours after expiration. Ironic that the county sheriff was charged (and later pleaded to) with intimidation, but none of his officers seemed interested or capable of taking such a report from a private citizen. When I learned from one officer what I needed to do, I forwarded audio and transcript of one occurrence and my call to law enforcement (before the statute of limitations expired) to the prosecutor's office. I didn't even receive an acknowledgement. Earlier, I'd gone in to the prosecutor's office and been told that the officer's (written) report didn't match what I said occurred. Since I had the audio, I can only say that I have very little faith in Indiana government or law enforcement.

  4. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  5. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

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