How to Choose a Lawyer

Many qui tam relator whistleblowers struggle with choosing a lawyer or a law firm to advise them or to prosecute their case.  Choosing the right lawyer is only slightly less important than having a good case.  Some of the issues that should be considered are:

1. How much real experience does the law firm have in False Claims Act litigation?
   
   Many law firms advertise or otherwise indicate that they do FCA litigation in order to obtain clients in a relatively new field for the firm.  Many lawyers who have even had a case or two might indicate that they have qui tam or FCA experience.  However, what sets Bothwell Bracker apart is that Bothwell Bracker has been a pioneer in the field and has litigated every aspect of the False Claims Act.  Some firms have had a case or two where the government intervened and did the real litigation.  While this exposed the firm lawyers to the FCA, it did not give them the breadth of experience for the cases where the government does not intervene or does not do all the work.  Bothwell Bracker provides the same in-depth legal service whether the government intervenes or not.  Bothwell Bracker has taken several cases to the pre-trial stage of litigation and has handled numerous appeals.  Bothwell Bracker does not also do general practice litigation, plaintiff’s injury work, criminal defense or other specialties that take away from the focus and experience in the FCA that this very unique area of law requires. 
   
   
2. What happens if the government does not take the case?
   
   Many law firms that have experience in FCA litigation will not keep your case if the government declines it.  This happens with equal or greater regularity if the law firm does not have FCA experience.  This is known as the lottery ticket mentality, where some lawyers believe that they can pitch a case to the government and when the government intervenes and runs the case, the lawyer and the client can punch a lottery ticket of winnings.  This has worked for law firms in the past, which is why some advertise FCA litigation experience they do not truly have.  Bothwell Bracker has been working in this area long enough to know that the real declination rate at the outset of the case is over 90%--which means that more than 9 out of every 10 people who think they have an undeniable case get an initial declination by the government.  Then they lose their legal representation and are left to get new lawyers quickly or get thrown out of court. 
   
   That does not happen with Bothwell Bracker as we take cases on the merits and not based on a lottery ticket mentality.  Bothwell Bracker knows that declinations can depend on political reasons as well as resource allocation issues, and most of the time, it has little to do with the relative merits of the case.  Because of its hard work, Bothwell Bracker has been able to convince the government to intervene in cases at a later date and has been able to assist the government in prosecuting cases when the government’s theory or evidence has evaporated during litigation.  Bothwell Bracker has gotten millions of dollars in settlements where the government could not invest resources due to an initial estimate of value in the thousands of dollars.  Because of the firm’s experience and added value in litigation, government lawyers have offered Bothwell Bracker clients the maximum relator’s share in both intervened (25% ) and non intervened (30%) cases where the national average is usually around 16%.
   
   
3. Does the attention paid the client vary with the relative size of the case?
   
   The relationship between a plaintiff and his or her attorney is often more than a business relationship.  However, a qui tam relator whistleblower has unique relationship issues that not even all experienced FCA practitioners fully understand.  Many law firms provide different levels of service depending on the anticipated size of the case, with some firms jettisoning clients as the anticipated value dips below a pre-designated cut-off point.  While larger and more complex cases demand more attorney time, Bothwell Bracker tries to make client relations uniform across cases as noted in some of the client comments below. 
   
   The average False Claims Act case takes a great deal of time from beginning to end.  The cases are filed under seal and remain under seal until the government finishes its investigation or until the court stops granting extensions.  Bothwell Bracker has had cases under seal for up to ten years and expects that any given case may be under seal for several years.  Even if the case is unsealed rather quickly, the litigation can often last several years on its own. Therefore, the relationship between attorney and client needs to be one that can last through long years of hard fought litigation.  Bothwell Bracker works hard to maintain very good client relations and its attorneys always remember who they are working for. 
   
   
4. What happens if the government becomes adversarial?
   
   Many potential whistleblowers are overly confident that as soon as the government or the defendant hears what they have to say the matter will be quickly resolved.  Sadly, national statistics do not support that theory.  However, because many whistleblowers cannot imagine that the government could be adversarial to their cause, they do not ask potential lawyers what would happen if the government became adversarial.  The answer from most firms is that they would back down in deference to the government and leave the client unrepresented. 
   
   One of the earliest published cases after the 1986 amendments should give all whistleblowers reason to ask potential lawyers the question of what happens if the government becomes adversarial.
   

   It is instead the very concept of “whistleblowers” that appears to be in issue.  The pattern of behavior in these cases by the Department of Justice always has been a mystery.  The use of a qui tam plaintiff is nothing new. . . .  In view of their widespread use, it is worthy of note that the Department of Justice has considered such individuals as adversaries rather than allies.  This is not the first case where this Court has noted the antagonism of the Justice Department to a whistleblower.  The reason continues to be unknown, but the attitude is clear.

   U.S. v. G.E., 808 F. Supp. 580, 583-84 (S.D. Oh. 1992) (footnote omitted).  Bothwell Bracker is one of the only firms with experience in dealing with a government lawyer antagonistic to the case.  Bothwell Bracker has rarely had to litigate matters between the government and a qui tam relator.  However, it is important to know that a law firm has that experience if needed.  Indeed, Bothwell Bracker has settled a case for millions of dollars where the government initially threatened to dismiss the case with prejudice based solely on an ex parte communication from the defendants’ lawyer.  Bothwell Bracker has litigated cases where government attorneys settled for tens of millions of dollars the case brought by the whistleblower and refused to pay the statutorily required relator’s share.  Bothwell Bracker has litigated a matter where the government failed to adequately investigate a case and, for political expediency, pushed a quick, small settlement.  The 1986 amendments to the FCA were intended to make the relator a full participant in the matter until it is fully and adequately resolved.  The FCA also intends to guarantee a full relator’s share.  Bothwell Bracker represents relators’ interests even where they occasionally conflict with government positions.