The Death of the Adversarial System

Law is an adversarial system. Lawsuits involve people fighting. Some of these fights are inherently more personal than others. Since starting my own firm years ago, I have defended dozens of people in non-compete and trade secret cases. Florida, in particular, is a hotbed of non-compete abuse.

In these non-compete cases, the plaintiff is almost always seeking an injunction to stop my client from working. It is truly gut-wrenching when my client is a security guard or a factory worker who is barely surviving. Or foster parents who just want to keep their children but are subject to a foster care non-compete agreement (it exists -- ask Lifeshare and their lawyers for an explanation). So in many of these cases, the plaintiff's goal is literally to put my client out of work. And in some particularly egregious cases, the plaintiff's goal is to drive my client into poverty and bankruptcy.

I have seen non-compete threats that go like this: The hot-headed owner of a small company requires everyone to sign incredibly broad non-compete agreements. Those agreements are clearly unenforceable as written and probably unenforceable period. But the owner treats non-compete agreements like a religion. Never mind antitrust law, restraints of trade, or the fact that illegal contracts are unenforceable. Forget all that. Non-compete agreements are sacred contracts and must be enforced. Never mind that the owner is breaching his obligations under various employment agreements. Never mind that the owner is engaging in unlawful discrimination. Never mind that the owner is violating federal wage laws. That does not matter. The only thing that matters is the non-compete agreement. And by God, non-compete agreements are sacred contracts and must be enforced or the entire world will crumble. Let's call the owner Oliver Twist.

Joe works at Oliver Twist's company for three years. Let's say he's a recruiter. There's nothing remotely confidential or proprietary. Joe is really good at his job. He makes Oliver Twist lots of money. After three years, Joe decides to leave the company and start his own recruiting business. He doesn't do anything wrong. He doesn't use any of Oliver's supposed secrets. He just goes on Google and LinkedIn, works the phones, networks, and starts recruiting. Oliver finds out and is livid. He immediately texts Joe:

You're in violation of your noncompete. I warned you. I'll spend 100k on my lawyers to destroy you and take everything from you. I'll take your house. You have 48 hours or I'm turning this over to my lawyers from [BIG LAW FIRM].

I have seen literally dozens of non-compete threats like this from the plaintiff, company, owner, or boss. So in many of these cases, the party on the other side is out to destroy my client, put them out of a job, prevent them from earning a living in their chosen profession, and even leave them homeless.

And I am the one who is supposed to be civil. I am supposed to be chummy with the lawyers on the other side who represent these folks. I am supposed to be cordial and collegial. It's one thing in the big non-compete cases, where both sides are sophisticated and have lots of money. I litigate lots of those cases. Those cases are existentially different. Nobody's survival is in question. Nobody is at the risk of going homeless. That's like a rugby match. We would play a match against, say, Colgate. And after the match was over, we would all shake hands and drink beer together. You see, rugby is a gentleman's game. The big non-compete cases with lots of money on both sides are more like that. Hard fought but civil.

The non-compete case involving poor, working class, and middle class people are much different. In these cases, there's an existential threat. My client could be a security guard, factory worker, nurse, recruiter, etc. The other side is coming after my client. Maybe it's Oliver Twist. He's on the war path. He wants to shut my client down, drive them out of business, put them out of a job, take all they have, and even leave them homeless.

So I take lots of these poor people non-compete cases either for free, or, for some relatively small flat fee. Say $10,000. I know $10,000 is a lot of money to most people. But considering that I might put $250,000 in attorney time and $25,000 in out of pocket expenses into a case like this, $10,000 is an incredible deal. And other cases, I just jump in for free. No guarantee of ever seeing a dollar. This isn't personal injury law. We're talking about defending non-compete cases and suing to declare non-competes unenforceable in Florida, which is the epicenter of America's non-compete crisis and culture of non-compete abuse. I personally do not know other lawyers who do poor people non-compete defense on a contingency fee. It's very risky. It's often thankless. It's not a good business decision. I was always a better human being than I was a business person.

So I'll be in a poor person non-compete case. I'm not making any money from it. In fact, it'S costing me money. I own a law firm. I have tons of overhead. Salaries. Office space. Computers. Software. Insurance. You think putting $250,000 of attorney time into a poor person non-compete case is free for me or easy? It's not. In fact, it costs me double. Because any of my colleagues who are working on a poor person non-compete case without getting paid could be working on either (a) our hourly billable cases or (b) our plaintiff-side contingency fee cases where we are seeking many millions of dollars and the potential payout to the firm is massive. And as for me, the time I spend on poor person non-compete cases without charging a dollar could be spent, say, writing expert reports at $700+ an hour, doing consulting work where I clear well over $1,000 an hour, or working on the aforementioned plaintiff-side contingency fee cases.

But instead, here I am fighting against non-compete abuse and fighting so that poor and working people can make a living. And often doing it without charging those people a dollar.

Some weeks, I work 90 hours. I have five or six flights. I'm in three or four different cities. I have big cases with millions on the line and poor person non-compete cases where people's lives and families are on the line. I'm doing my part. I'm trying to be the catcher in the rye. I'm trying to help people in need. I'm living my credo. Matthew 25:42. My ancestors were slaves. I'm trying to end modern American slavery and indentured servitude. I'm an abolitionist. I'm on a mission.

And almost invariably, people on the other side accuse me of anything and everything. After all, I'm ruining their little non-compete party. Everybody was having a perfectly good time abusing non-compete agreements, exploiting working people, suppressing wages, restricting competition, and making money .... until I came along and ruined their party.

The most common allegations against me are that I have violated some vague, nebulous, catchall rules regarding civility. Maybe I sent a settlement demand that explicitly told opposing counsel that they did not understand this area of law and were in over their heads. Maybe I told opposing counsel that they had given their client bad advice and that their client had made a series of bad decisions. Maybe I told opposing counsel that they should get a second set of eyes on the case (e.g. escalation counsel). Maybe I told opposing counsel that they could pay now or pay more later. Maybe I threatened to file a countersuit or a separate lawsuit against the party on the other side for EVERYTHING. Wage and hour violations. Securities fraud. False advertising. Fraud. Antitrust. Literally claim that I could identify and that I viewed as legitimate. And maybe I made good on that threat and DID file a countersuit, a second lawsuit, a third lawsuit, a fourth lawsuit. Maybe I did all of that.

I guess I was wrong.

These people attacked my clients who were making $12 an hour or $30,000 a year--- poor people, working people, people just barely getting by. So that created an existential threat to my clients. My clients faced the risk of being evicted, homeless, financially ruined, unable to provide for their families. I've seen people driven to actual illness by non-compete abuse, the stress, the poverty. I've seen women miscarry during this sort of ordeal. And knowing that my clients' very survival was in jeopardy, I jumped into the arena and I went as hard as I could go. Often not getting paid for it. Spending my own money on litigation costs. Pouring countless hours into these cases. Losing sleep at night trying to be the catcher in the rye. Fighting back against people who are trying to destroy the clients who I have a duty to represent zealously. The clients I am loyal to. The clients who I have to protect and defend through any means necessary that is permitted by law.

You will have to forgive me. I thought it was an adversarial system. In these poor and working people non-compete cases, I thought the people coming to destroy my clients were our adversaries. I thought I was on my clients' team. I thought I was the leader of my clients' team. And leaders protect their people, at any cost. I thought that if these people were coming to destroy my clients', ruin their lives, put them out of work, and even leave them homeless that I had a duty to step in and do anything and everything possible within the law to protect my clients, their rights, their families.

I now see that I could have been far more civil and less controversial had I gone to work for a corporate-side law firm and made money by suing janitors, factory workers, and security guards in non-compete cases. Because those people almost never have the means to hire sophisticated counsel, turn the tables, and fight back. Everything could have continued peacefully. The non-compete abuse, worker exploitation, wage suppression, restricting employee mobility, stifling fair competition, and making money. It was uncivil of me to disrupt all of that. And really, it was unfair. I used the law. And I repeatedly proved that I was right on the law. But it was unfair of me to use the law to my advantage in defense of poor people. The entire legal system is supposed to favor people who have more money and corporate interests. It was wrong of me to challenge that. I should have simply accepted defeat and never fought back.

As for my aggressive litigation tactics, demand letters, and mean words, I now see that my conduct has been utterly indefensible. In the course of fighting for my clients and trying to protect them, I forgot that I might be upsetting or offending either the parties or the lawyers on the other side. Yes, it's distressing being a poor person who is getting sued on a bogus non-compete agreement, loses their job, can't afford a lawyer, and might get evicted. But I now see that it must be far more distressing to get a letter from a lawyer like me that explains the law, tells you you're wrong, says you're immoral, and demands money. It also must be very stressful on the other side when I win and when courts agree with me. In retrospect, I now know that all of this has been wholly unfair and inappropriate.

Not to mention that I had an unfair advantage: For one thing, I grew up working class and occasionally poor. I had nothing to fall back on. I had to survive. I had to win. So I just became a worker. I just learned how to work like a dog. To survive. To do whatever was necessary. My life made me tough, resilient, relentless. It was unfair to use that psychological edge in the practice of law. Beyond that, I had another advantage: I read a lot. I read lots of cases. I read lots of books, including on law. I am constantly studying the law, trying to learn more, and trying to get better at it. That was unfair of me. There are lots of people in the law who do not like to study or read. There are lots of people in law who feel like they have learned everything after 5 or 10 years. After that, they coast. They use the same old recycled strategies, pleadings, arguments. They're making lots of money so they have no interest in growth. It was unfair of me not to recognize that. I should have stopped trying to learn more law. Or at the very least made a collegial agreement with opposing counsel that I would never try to outthink or out-lawyer them. That would have been very collegial and civil of me. Had I done that, then I could have played nice with everyone. And maybe, sometime down the road, opposing counsel in poor people non-compete cases would have referred me some business. Possibly a case suing a janitor or factory worker over a non-compete agreement.

And perhaps the most distressing: I now see that I read the Gospel of Matthew too many times and reflected too long on the words:

"Truly I tell you, whatever you did for one of the least of these brothers and sisters of mine, you did for me."

Those words always resonated with me. I thought I had a duty to defend the defenseless. To help those in need. To fight for those who could not fight for themselves. But I was never very good at reading and interpreting language. I now see what those words really meant. I was supposed to be a model of civility and collegiality. I was supposed to be best pals and chums with every lawyer in the system. I was never supposed to speak ill of any other lawyer, even those who I perceived as unethical or immoral. I was supposed to abide the rule that I never hurt the feelings of opposing parties or lawyers. I was never supposed to try my hardest. I was supposed to take a vow of silence regarding dysfunction, greed, inequity and corruption. Talking about those things makes some people uncomfortable and hurts their feelings.

I now know that I am not allowed to make anybody uncomfortable or hurt anybody's feelings. Even if those people are suing my poor clients to enforce a non-compete agreement against a factory work, a security guard, a janitor, a foster care parent..... I now see that I was not supposed to fight. I took it all too literally. I saw an existential threat to my clients' and their families, so I stepped in and fought all out, as hard as I could.

I hope that all of you can forgive me. I was wrong. But in my defense: I thought law was an adversarial system.

JP