Employment Law, Market Failures, & Quick Buck Lawyers - or - I'm filing 100 New Cases

Strap in. This is going to be a wild one.

The Beginning

More than a decade ago, I started a law firm. And one of the first realizations I had: Companies and corporate lawyers in Florida were abusing non-compete agreements. Most lawyers representing employees on the other side of those cases weren't doing a very good job. And many Florida judges had gotten the law completely wrong (not just according to me but according to binding legal precedent). So I went out and defended literally hundreds of non-compete cases. Sometimes for executives and rainmakers who had millions of dollars. Sometimes for janitors and security guards who had no money at all.

Over the years, our firm won lots of significant non-compete cases. Sure, we lost some, too. But we won far more often than we lost. We built a new body of case law. We built a blueprint that other lawyers and law firms can now follow.

The Pivot: Plaintiff-Side Employment Cases

About a year ago, I made the decision to shift my focus from defending employee non-compete cases to prosecuting traditional plaintiff-side employment cases. That means discrimination, retaliation, sexual harassment, sexual assault, defamation by former employers, etc.

At first, I made a reasonable but significant investment in acquiring leads on those possible cases. I invested ballpark $100,000 to get a sense of what was out there. It started out as a trickle. I would get 5 or 10 leads on possible discrimination cases a week. Then that turned into 20. Then 30. Most of the grievances objectively were bullshit. At least 60% of the "Do I have a case" inquires were just people complaining about their boss or colleague being a jerk. And there's no law against that.

Another 30% were still not viable or attractive to me for various reasons. So that's 90%. But 5% to 10% of the leads were real cases. And not just real cases. But really egregious cases. Really strong cases. Cases that I would not blink at taking to trial.

A famous lawyer I'm friends with who doesn't want me to out him once told me, "Pollard, I only file cases where I feel that I can win with what I've got right now. I only file cases that I could try tomorrow and win."

Meaning discovery and motion practice are totally irrelevant. Sure, you have to go through the process. But if you only file cases where you already have the facts and evidence to win at trial -- that's a massive advantage.

So I adopted that paradigm. Most lawyers cannot do that because that paradigm requires an extreme degree of selectivity. And you can only be that selective if you have two things: (1) tons of leads and (2) money to burn.

So I acquired tons of leads. I went from about $100,000 to about $400,000 on lead acquisition. Then I invested my entire life savings in flipping from a law firm that billed hourly (at serious rates) to primarily a contingency fee model.

Why? Because I've been in the game long enough to be equal parts sage and savage. I know what works. I know what doesn't. And I know how to gut it out. Now, the situations and complexities that would have made me want to throw up 10 years ago don't even make me blink.

Market Failures and Quick Buck Lawyers

Over the past few weeks, we have filed several really ugly cases. We have more in the pipeline. We'll be filing at least 2 a week. You may have read some of the complaints. I've posted some of them here on LinkedIn. Age discrimination against McDonald's. Race discrimination against Allegiant. Race discrimination against a security guard company in South Florida. Negligent hiring / sexual assault against Wyndham. The list goes on and on.

In some of these cases, my initial notion was to offer the company the chance at doing pre-suit mediation. Some cases settled pre-suit. But most did not. And for some cases, opposing counsel refused to negotiate or engage pre-suit.

Take Jackson Lewis. Jackson Lewis is a BIGLAW firm with a major presence in the labor and employment space. Jackson Lewis essentially has a nationwide policy where they generally refuse to settle or engage pre-suit. Isn't that interesting? That's the same Jackson Lewis who just represented Equinox Fitness in the New York race and gender discrimination case where Equinox got tagged for $11 million. How's that working out for you?

I apologize for the tangent. Back to the lecture at hand: I've had dozens of these cases that I consider incredibly strong cases. Look at my recent case against McDonald's. That case will result in a jury verdict far north of $1 million. Yes, the other side will file various motions to reduce the verdict and we can have that fight. But at absolute rock bottom the case is going to cost McDonald's (or its insurance company) $1 million.

How do I get there: The Florida Civil Rights Act (FCRA) does not cap damages for emotional distress or loss of dignity. A jury is going to award Barry millions of dollars on that bucket of damages. There will be a post trial fight over whether, say, a $10 million award on that bucket of damages should stand or be reduced. McDonald's will obviously fight to reduce it to $200,000. My best read on the case law is that the award could stand or, at worst, be reduced to about $2 million. But let's be extremely conservative and call it $500,000.

Let's call the economic damages (lost wages) $50,000. Then the $500,000 in compensatory damages (addressed above). Then $100,000 in punitive damages (capped by Florida law in this case). Then $300,000 on our attorneys' fees. Then $300,000 on McDonald's attorneys fees (this is fees all the way through trial and post-trial motions / appeals). Go ahead and discount some of this. It's still a $1 million case -- or more.

The problem: There are actually two problems here. The first problem is that certain defense-side law firms don't want cases to settle pre-suit because that prevents them from billing lots of hours. It's basically just misaligned economic incentives. The second problem is actually plaintiff-side employment lawyers themselves. Why? Because they want a quick buck. Because they'll convince their client to take $30,000 on a case that is conservatively worth $300,000. If that random plaintiff-side employment lawyer has a handful of cases that they can settle for a quick $20k or $30k, that adds up. It's an easy money without too much work or any real risk.

So in this clash of civilizations outlined above, corporate America usually prevails. They lowball. And many plaintiff-side employment lawyers take the lowball offer.

Over time, this has resulted in a huge market failure. It has created a landscape where companies and corporate lawyers often approach legitimate / strong plaintiff-side employment cases with the lowball strategy. Why? Because statistically and historically, it works. Statistically and historically, many (if not most) plaintiff-side employment lawyer will accept $30k on a case that realistically should go for 10x that.

Are there any guarantees in litigation? No. But there's also common sense and a reasonable appetite for risk. Advising a client (employee) to take $20k or $30k on a case that realistically should go for much more than that reflects (a) a lack of common sense and (b) basically zero tolerance for risk.

What does that create? A massive opportunity to exploit the market failure.

Proof of Concept, or, I'm Filing 100 Cases

Sure, I have a lot to say. But I also have no problem testing my theories in the real world. I have no problem putting my money where my mouth is.

So that's what I'm doing. I call this proof of concept. I'm filing at least 100 plaintiff-side employment cases over the next year. Probably more. Probably lots more. Will some of my clients accept lowball settlement offers? Probably. That's their right.

But most won't. That's part of client selection. You're not just picking cases based on facts. You're picking cases based on clients who are absolute riders. You're picking clients who will trust and follow your judgment.

So I'm rolling out the first 100 cases. That's 100 out of more than 6,000 leads / inquires / potential matters. That's me personally vetting every case we green light.

Each of those cases is worth at least $200,000. Most are worth more. Some are worth lots more. The $200,000 benchmark is a conservative per-case value that builds in all sorts of risks and contingencies. Upshot: The first 100 case bucket is worth at least $20 million total value. I say the per case value above is ultra conservative and the real number is at least $300,000. That puts the 100 bucket at $30 million.

But it gets even crazier. Data from the first 100 cases is going to inform subsequent case selection. It's going to refine the selection matrix. We couple that with an increasing volume of leads/inquires. Collectively, this allows us to be even more selective while still generating 100, 200, 300 new cases that we rate 9 out of 10 or 10 out of 10. Upshot: The third and fourth 100 case sets will be worth even more.

On Volume and Scale

Compared to defending complex, high-stakes, bet the farm non-compete and trade secret cases with 100,000+ documents, temporary restraining orders, preliminary injunctions, interlocutory appeals, complex legal issues, novel jury instructions and everything else.... these plaintiff-side employment cases are easy. As a firm, we would litigate 50 non-compete and trade secret cases at a time with 3 or 4 lawyers. Including absolutely massive cases.

My ultimate plan here is to run 200 to 300 plaintiff-side employment cases at a time. Not me personally, of course. But as a firm. I'm confident we can do that - and do it brilliantly - with 10 lawyers.

And Last

So that's that. I'm gambling everything I've ever made on this next frontier. I'm betting my career on this move. Yes, I could have stayed in my lane and kept defending non-compete and trade secret cases. I was billing $750 an hour on litigation. I was getting $75,000 and $100,000 RETAINERS. I had lots of that business.

Matter of fact, I just turned away a MASSIVE non-compete / trade secret / injunction case that was so complex and high-stakes it would have required me and two of my colleagues to dedicate all of our time over the next 3+ months. No budget. Premium rates. $900 an hour. Easily worth $1.5 million over the next year. Hell, I turned away another one like that a couple months ago.

Why? How? Well, as a threshold matter, I guess I'm just an unmitigated crazy person.

But on a more philosophical note: I like challenge. People say it can't be done and I like proving people wrong. After all, I wasn't supposed to amount to anything. I had - so they say - oppositional defiance disorder. I have an inherent disdain for authority and the system. I have an affinity for the epic. I despise corporate America and many of their BIGLAW cronies. With me, it really is personal. It's all personal. This is my law magnum opus. And it starts now. Then I disappear and go write novels.

JP