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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. Your article is a good intro the recent amendments to Fed.R.Civ.P. For a much longer - though not necessarily better -- summary, counsel might want to read THE CHIEF UMPIRE IS CHANGING THE STRIKE ZONE, which I co-authored and which was just published in the January issue of THE VERDICT (the monthly publication of the Indiana Trial Lawyers Association).

  2. Thank you, John Smith, for pointing out a needed correction. The article has been revised.

  3. The "National institute for Justice" is an agency for the Dept of Justice. That is not the law firm you are talking about in this article. The "institute for justice" is a public interest law firm. http://ij.org/ thanks for interesting article however

  4. I would like to try to find a lawyer as soon possible I've had my money stolen off of my bank card driver pressed charges and I try to get the information they need it and a Social Security board is just give me a hold up a run around for no reason and now it think it might be too late cuz its been over a year I believe and I can't get the right information they need because they keep giving me the runaroundwhat should I do about that

  5. It is wonderful that Indiana DOC is making some truly admirable and positive changes. People with serious mental illness, intellectual disability or developmental disability will benefit from these changes. It will be much better if people can get some help and resources that promote their health and growth than if they suffer alone. If people experience positive growth or healing of their health issues, they may be less likely to do the things that caused them to come to prison in the first place. This will be of benefit for everyone. I am also so happy that Indiana DOC added correctional personnel and mental health staffing. These are tough issues to work with. There should be adequate staffing in prisons so correctional officers and other staff are able to do the kind of work they really want to do-helping people grow and change-rather than just trying to manage chaos. Correctional officers and other staff deserve this. It would be great to see increased mental health services and services for people with intellectual or developmental disabilities in the community so that fewer people will have to receive help and support in prisons. Community services would like be less expensive, inherently less demeaning and just a whole lot better for everyone.

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