What do I need to do to become a products attorney?

Product Liability
May 01, 2013

"Tom, what can I do to become a products attorney?" I get asked this question by law school students and sometimes by younger attorneys. This article is for those who wish to venture into the world of products liability litigation. I'm not sure which is the better place to begin, encouraging you or cautioning you, but let's start with encouraging.

Products liability work is immensely worthwhile and satisfying work. We represent folks who are harmed by dangerous products usually as a result of a design defect, a manufacturer's error, or an inadequate warning. It's rewarding work. Sometimes you take on products that have been litigated countless times (e.g. asbestos) and other times it's a novel item. Both are exciting. Often times you draw a quality opposing counsel, which is a good thing. I'll take a quality opposing lawyer any time over an inept one. Lastly, since the stakes are high these cases can and do go to trial. So if you are looking to get into trial, products liability is a great line of work.

Now for the caution. These cases are expensive. Defendants can have so much invested in a product that they feel they have to

throw everything at defending a case. You've got to know this before wading into this field. Defendants have seemingly endless budgets. If you can't afford to litigate this matter all the way to verdict, then you should get out of the products field or team up with a firm that can litigate the matter all the way. It takes time to develop good relationships with experts. You need these folks. They can save you time, money, and angst by steering you clear of a problematic case. They can also provide you with the confidence to move forward against a product manufacturer. But this takes time.

I think that to become an excellent products attorney, one really should just focus on becoming an excellent attorney. Three things will help immensely in products litigation: trial experience, learning how to push for discovery, and expert depositions. Those skills can be developed elsewhere. The best place to get trial skills is to try cases. And you get more of that as a prosecutor or public defender. The experience is invaluable. As to pushing on discovery, any commercial litigation firm should provide ample experience. Expert deposition work is trickier to come by. If you are doing big complex litigation, you are unlikely to get to take the important expert depositions. I recommend taking any expert depositions, no matter how small the case, just to get the experience.

There are still product specific things you can learn. So if you still want to enter into the world of products liability litigation, then let's start with some reading material. David Owen has a good text book titled Products Liability and Safey. My former products liability professor at law school, William Powers has an excellent case book too by Thompson and West. He was the Dean when I attended law schoool; he's now President of the University of Texas, but I understand he still fits in some teaching at the law school.

You'll naturally need more than just an overview. You'll need to know your state's law. There's ample case law in Washington. A simple search can yield many a case for good reading. RCW 7.72 is the statutory section that governs product liability actions. You'll want to check this and shepardize it to make sure it is current and reliable. There's also a classic products liability article that's worth reading. In 1981 there was a sea change in Washington Products Liability actions. Former Washington Supreme Court Justice and current appellate advocate of the highest level, Phillip Talmadge wrote an article that goes back to the early 1980s, but is still worth reading and knowing.

In 2014 the Washington State Association for Justice will be publishing a products liability deskbook. This should be a helpful tool for all products litigators and should compliment the already helpful WSBA materials on products liability. My firm, SGB, has a handful of folks authoring the WSAJ publication. I'm looking forward to seeing the final product next year. How's that for a pun?

Finally, I would encourage anyone interested in doing products work to watch a products trial in action. You simply need to check the docket of the courthouse near you. If you see a case in action, you'll know right away if it is right for you. I did the same thing when I was in law school. The University of Texas has a storied history when it comes to tort law. Some of the greatest tort law professors come from UT (Prosser, Keeton, Green, Anderson, Powers). And some of the greatest tort lawyers do too. A good starting place would be Joe Jamail field at the football stadium. Well from time to time the law school would host trials. I would duck in to watch a products trial concerning the damage done to a little girl by a Ford car. It was fascinating. I knew it was something I wanted to do. I encourage you, the law student or younger lawyer to do the same. If it's for you too, then welcome to the club.