The Plaintiff Lawyer’s Playbook

Reviewed by Nicole Gainey

Originally published in the September 2020 issue of Trial Newsthe monthly publication from the Washington State Association for Justice

Elden Rosenthal is a Pacific Northwest treasure and his Playbook—a succinct yet compassionate beginner’s treatise on the practice of plaintiff’s law—is a bountiful gift to our bar. 

Rosenthal is a long-time Portland, Oregon attorney and an avid fly-fisherman. He claims inspiration for The Plaintiffs’ Playbook was derived from two sources, one being The Curtis Creek Manifesto, An Introduction and Guide to Fly Fishing by Sheridan Anderson. In the introduction to his book, Rosenthal states that for him, The Curtis Creek Manifesto was a principle source of guidance into the mysteries of fly fishing, a source that he relied on for many years as he was learning the craft. More experienced attorneys have likely long forgotten that, like fly-fishing, plaintiffs’ law can often be confusing, and the process of working up cases opaque, to newcomers. To the uninitiated, plaintiffs’ attorneys talk and write in a strange, unknown language. Rosenthal’s Playbook not only deciphers the strange language of the law but also illuminates the path of the trial attorney. His Playbook is a concise and carefully crafted map laid out to help the new attorney navigate the often-treacherous path from client selection to trial. I do not know if the Curtis Creek Manifesto helped Rosenthal become a first-rate fly-fisher, but it surely got him headed in the right direction. Likewise, Rosenthal’s Playbook is a first step primer and overview to plaintiffs’ work that will get any new attorney headed in the right direction on the path to becoming a successful plaintiffs’ attorney.

The second, and truly primary, source of inspiration for The Playbook derived from Rosenthal’s last few years of practice. In 2015, he and Bill Gaylord, another successful trial attorney, formed a partnership. The sole function of that partnership was to mentor less-experienced lawyers. During those mentoring years, Rosenthal realized the tremendous advantage he had enjoyed early on in his career by being actively mentored by numerous seasoned trial attorneys. According to the introduction of the Playbook, teaching others reminded Rosenthal of the many lessons and fine points the new attorney must master. Lessons and fine points that others walked him through by example and guidance on a daily basis in the first few years of his journey. Lessons that, he realized while mentoring, are not intuitive or easy to master.

Likely because he wished to someday spend more time fishing and less time mentoring, he committed to sharing that mentoring practice via his Playbook. In this way, Rosenthal imparts his knowledge and experience to the next generation of plaintiffs’ attorneys. Sharing lessons learned during his 47-year career and informed by his years of focusing directly on mentoring new attorneys. His Playbook will help the new attorney conquer the steep learning curve of the first few years of practice in the same way that a good senior partner would—with compassionate understanding of what the new attorney does not yet know and with laser sharp focus on what is important and necessary to successfully resolve the case. Rosenthal’s Playbook is just that—a stand-in for the mentor that every new plaintiffs’ attorney needs but does not necessarily have.

The Playbook is an artful guide. The new attorney will find that Rosenthal has included nothing superfluous. At only 159 pages, Rosenthal’s book is a powerhouse of concisely targeted advice. Illuminating the processes necessary for the competent work-up of the plaintiffs’ case, it focuses on the work that attorneys spend most of their time on—pretrial litigation. But it also briefly covers trial topics—from voir dire to rebuttal argument—just enough to demystify the process.

Clearly the Playbook can be used as a checklist of the basics and of the most important aspects of plaintiffs’ case preparation. The new attorney will also find it refreshingly full of advice on not only what needs to be done; but also, most practically, how to do it. Rosenthal’s years of mentoring clearly informed the guide in this way. His advice is both practical and reassuring in its depth of detail. At times he literally advises the newbie attorney to "use these words." Similarly, the appendix contains some helpful templates to make common tasks less grueling. The appendix includes retainer agreement language, a model stipulated protective order, a letter to send to the client regarding deposition, and a focus group questionnaire.

Rosenthal is an award-winning trial attorney who racked up numerous accolades over the course of his career. Additionally, Oregon employment law attorneys (and employees) can thank Rosenthal for bringing (and winning) the first Oregon common law wrongful termination in violation of public policy case: Nees v. Hocks, 272 Or. 210 (1975). The Supreme Court in Nees ruled in favor of the plaintiff when she was terminated for serving on jury duty. In 1991, Rosenthal received national attention when he co-counseled with the Southern Poverty Law Center in the landmark case of Seraw v. Metzger. The case tied white supremacist Tom Metzger, a member of the California Ku Klux Klan and who formed and led the White Aryan Resistance (WAR), to the murder of Mulugeta Seraw, a Black college student in Oregon in 1988. The lawsuit which included a $12.5 millon verdict against Metzger bankrupted WAR. In 2006, he represented a fellow attorney who was wrongly detained by the FBI, securing a $2 million settlement and an apology on behalf of his client.

When I spoke with Rosenthal in July, I asked him if he wished he had included anything else in his Playbook. He jokingly replied that he never figured out how to illustrate it to keep it in line with Anderson’s Manifesto. Then, after a moment of contemplation, he answered more grimly. He said that he wished he had included more about working civil rights cases. He added that there are not enough attorneys who focus their practices on civil rights. He seemed to be encouraging attorneys to do so, when he said, "the skills transfer, you just have to learn a new area of law."

Rosenthal is not quite finished mentoring and teaching. Perhaps he has another book in him? Something like, The Plaintiff Lawyer’s Civil Rights Playbook? I hope so.

The Plaintiff Lawyer's Playbook by Elden Rosenthal

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