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(323) 652-9451 - LAIt is simply too easy for lawyers to quickly lose credibility within the bar and before the judiciary. It seems we’ve already lost this battle with much of the public, but within the profession I like to think we begin our careers with an undeserved presumption that most of us (at least those without the last name “Madoff”) are straight shooters. This presumption should be nurtured and guarded for the gift it truly is.
A lawyer’s individual reputation for honesty is as important, if not more important, than his or her intelligence or skill set. Why? Most of us quickly learn that if we’re out of our comfort zone skill-wise, we have choices. We can involve another, more experienced practitioner. Or we can double up on our research until we completely understand an issue or area. Skills can be improved. The same is not true for reputation. Once our reputation for honesty is placed at risk, it is nearly impossible to fix.
The easiest way to lose credibility is almost too obvious to mention: to be untruthful, even about the most trivial detail. It’s not necessary to falsify documents or manufacture evidence; a lawyer’s reputation for honesty can be ruined simply by stretching the truth when “memorializing” a telephone conversation. We hang up, I read your letter, realize you’ve mischaracterized our discussion and from that point forward I don’t trust a word you say. Worse, when my law partner mentions ten years from now that he’s got a case against you, the first thought that comes to mind, which I surely share, is that you’re not to be trusted. And just like that, you’re no longer trusted.
Being untruthful with the court is even more dangerous. Setting aside the risks of sanctions, contempt, complaints to the state bar, etc., judges have institutional memory which can follow you your entire career. Just as I’ll tell my law partner that you can’t be trusted, judges do talk, and have lunch together and, I am informed, discuss their cases and the lawyers appearing before them. Let just one judge conclude that you are a lawyer capable of lying to the bench and that alone could devalue any statement you ever make in the same courthouse or even jurisdiction.
Many lawyers believe we only have our time and intelligence to sell on the open market. I would add that neither time nor intelligence have any value at all without a reputation for honesty. Once we lose the trust of our colleagues and judges, everything about the practice of law becomes more difficult, especially winning cases and getting referrals. Don’t risk it.
Even in an age in which instantaneous online communications, remote access and teleconferencing have made it possible to dispense with a good deal of in-person business communications, I continue to practice in a realm which requires I spend (hopefully) quality time communicating face-to-face with my clients and their management. Clients, particularly smaller companies, want to meet and evaluate their lawyer. And they should, since I will be the “face” of the company if a given dispute is tried before a jury.
Equally important, during the investigation and discovery portions of the case, I need to meet and work closely with key management and employees, many of whom may be important witnesses. In all but the most unusual circumstances, these must be done face to face. I like to conduct as many of these meetings as possible at my client’s place of business. While I am aware of the risks that the visit of a strange lawyer to the plant, facility or office can be disruptive (frankly, we’re not really welcome anywhere . . . ), experience has taught me that in-person site visits–even if there isn’t anything at the site for me to particularly see–are useful and even preferred.
Why? First, my job in representing any company invariably requires a strong knowledge of how the industry and the business function. I can’t effectively establish an employee was fired for not doing his or her job (as opposed to discrimination or retaliation) without understanding what that job requires. I’ve found it’s much easier to learn the requirements of most jobs by watching employees in action. If there’s technology or a process involved, there is no substitute for seeing this first hand.
Second, an in-person site visit permits me to understand first hand the culture of the company. Is it a relaxed, constructive environment or a pressure cooker? Does everyone respect, or merely fear, their boss? In certain circumstances, knowing the physical make-up of the work space is important. In a sexual harassment case, for example, where the parties work in relation to one another may have significance. Finally, when the client is looking for documents, a visit to the client’s place of business can sometimes help speed the search and location of key documents, even if I am not doing the actual searching.
I know that some lawyers resist or would prefer to avoid visiting clients at their facilities, but I’m not sure why. One of the attractions of practicing law for me has always been the exposure to the inner workings of a variety of industries. I’ve had the opportunity to learn a great deal about the automotive, aviation, real estate, mortgage lending and other industries through my involvement in various cases. If you’re a curious person, the practice of law can be rewarding for this reason alone.
So, if your lawyer resists visiting you at your place of business ask him or her why. Then give me a call.
I used to think it was a worthy skill unique to litigators: the ability to be harsh and aggressive when it seemed appropriate in the course of representing a client (in a deposition, for instance), but turning immediately friendly and professional as soon as we’d gone off the record and there was no question or objection pending. After all, didn’t it show that, as lawyers, we were in complete control of our emotions when we could turn our temper on and off, like John McEnroe at a Wimbledon final?
I’ve come to think differently now. I just finished a deposition with a crusty older litigator and I found his penchant for blowing hot and cold disconcerting. I was not doing the questioning, but while we were on the record he would make frequent, loud outbursts at the female lawyer conducting the deposition of his client. She, too, was seasoned and seemed unfazed by his temper, though she did ask him a few times not to yell at her. When we took breaks, he would almost instantly turn cordial, asking her where she lived, about her kids, etc. She played along, as though such vacillation of temperament was the most natural thing in the world.
The rules of ethics and most judges expect lawyers on both sides of a case to treat each other with “civility.” Are loud, threatening outbursts transformed into civility just because we change from bad cop into good cop when aggressivity is no longer called for? I don’t think so. Certainly there are going to be times during a deposition, negotiation or even a hearing when zealous representation calls for us to “kick it up a notch,” and establish a line we don’t expect will be crossed. But I doubt the experienced lawyer making the loud outbursts during the deposition would have behaved the same way during a trial–even a bench trial. So, why should he behave any differently just because there’s no judge or jury present?
I’ve been guilty of this in the past, though I always found it more difficult to instantly change from nasty bad cop to friendly good cop. When our communications turned cordial, I usually felt inauthentic. At the end of a full day of this, I was invariably exhausted. I still get riled sometimes, but I try (not always successfully, I admit) to maintain civility even when I feel my opponent is being unreasonable. I suspect, though I have no evidence to back it up, that litigators would live longer, happier lives if we could just cut out the vacillation between hot and cold and just treat each other civilly all the time instead.
I cut my teeth as a young lawyer doing almost exclusively automotive product liability defense. What always amazed me, particularly in cases involving extreme tragedy (death, disfigurement, paralysis), was how the automobile manufacturers took these risky cases to trial–and won! How was it possible to convince a jury to look beyond the tragedy and extreme suffering, consider the evidence about the design of a crucial component, understand that evidence, and return a verdict for the manufacturer? Particularly puzzling for me was the fact that, as we neared trial, even I still did not completely understand the technology, and I was a reasonably educated person who had been living with the case for several months.
A very distinguished trial lawyer answered this question during a pretrial presentation to our client of one particularly challenging case. He said that, in his experience presenting these cases to juries (and mock juries) all across the country, then debriefing the jurors after trial, it is clear that much of the technical nuances escape most jurors. No amount of careful teaching with brilliant demonstrative exhibits can make a person with a high school education or less, who has never worked in the automotive industry and, frankly, doesn’t care much about cars at all, understand a component, and comprehend why a company chose design A over design B.
What does matter to these jurors, he said, is seeing the lengths to which the manufacturer went to understand what occurred and how the plaintiff suffered her injury. If something failed, jurors like to understand how and why it failed, and particularly why a safer alternative design wasn’t available or why the design advocated by the plaintiff’s expert wouldn’t work or would have produced the same (or even worse) result. This is why it’s so extremely expensive to take these kinds of cases to trial, particularly when it takes one or more full-fledged crash tests, using identical automobiles, to understand exactly what happened.
A corollary is that jurors appreciate learning how hard the manufacturer worked, and how carefully the component was tested, to assure that the car was as safe as possible for the driver and her passengers. To the extent this can be woven into a story, with witnesses who do not drone on for days, the chances of keeping jurors awake to hear the ending improves. I like to think this principle can be equally applied to any context in which jurors are going to be asked to evaluate highly technical evidence. It becomes less about how or why something works, and more about how much the defendant cares about learning what really happened in a given case.
You don’t want to “cross” Omar. The fun begins at about 1:22.
A great recent post at What About Clients? highlights a policy that will benefit most trial lawyers. Basically, no later than 60 days before trial, take a fresh look at everything. Here’s how it goes:
“[N]o more than 60 days from trial, read over and take a proverbial bath in all of the written discovery responses and–if time permits–every deposition transcript in the case. Work through the materials relatively quickly but as thoroughly as you can. In particular, do one good read of any deposition you did not take yourself. And of all written and signed discovery responses (you can skip the documents). Go back to the start of the case. Do not rely only on deposition summaries or on outlines of direct or cross examinations prepared by others. The process of “immersing yourself” in all the discovery will suggest new sub-themes, patterns, weak points and even a new fact or two in your opponent’s case that meant little to your side when it was first produced. Now discovery will take on new and instructive meanings. Having gone through that exercise, you will be steeped in the case. You’ll have knowledge that will give your examinations of witnesses credibility, authority and command.”
This alone is a great idea. But I think the review could be an even more meaningful exercise if it is informed by what you’re going to do with the evidence you find. When, for example, does it make the most sense to highlight a piece of particularly powerful evidence? I like to have copies handy of the most important jury instructions I expect will be given at trial. This way, as I’m taking a bathin the evidence, I can develop a plan where the evidence will be best presented. It also gives me a head start on how I’m going to structure my closing argument, where I take the jurors though each element of a claim or defense and show how the evidence proves or disproves a particular element. I like to think this is a great idea made even better.
An article in the June issue of For the Defense offers guidance on selecting the best mediator for a particular case. Among the different styles of mediator (evaluative, facilitate, hybrid), one that is often overlooked is a style denominated as the “transformative” mediator. Why is this style disfavored? I decided to dig a little deeper.
According to the oracle of all truth, Wikipedia, “the transformative approach . . . takes an essentially social/communicative view of human conflict, [in which] . . . a conflict represents first and foremost a crisis in some human interaction—an interactional crisis with a somewhat common and predictable character. Specifically, the occurrence of conflict tends to destabilize the parties’ experience of both self and other, so that the parties interact in ways that are both more vulnerable and more self-absorbed than they did before the conflict. Further, these negative dynamics often feed into each other on all sides as the parties interact, in a vicious circle that intensifies each party’s sense of weakness and self-absorption. As a result, the interaction between the parties quickly degenerates and assumes a mutually destructive, alienating, and dehumanizing character.”*
This all very Heideggerian and existential, but will it settle cases? Well, it seems that may not be the only goal. “Success is measured not by settlement per se but by party shifts toward personal strength, interpersonal responsiveness and constructive interaction. As parties talk together and listen to each other, they build new understandings of themselves and their situation, critically examine the possibilities, and make their own decisions. Those decisions can include settlement agreements, but no one is coerced into any decision or agreement. The outcomes are entirely in the parties’ own hands and subject to their own choices. Effective mediator practice is focused on supporting empowerment and recognition shifts, by allowing and encouraging party deliberation and decision-making, and inter-party perspective-taking, in various ways.”*
There might be something to this. In my experience mediating disputes that are particularly emotionally charged, attorneys can walk away quite satisfied with a clean, buttoned-up settlement, but the parties themselves come away feeling they “sold” their case too cheaply (or “bought” their peace at an unfair price). Mediations that dispense too quickly with the “heart” of the dispute and rush into exchanging dollar figures based purely on estimates of damages or jury verdict potential can leave plaintiffs feeling like they haven’t been heard. While a fat settlement can sound appealing, it usually won’t heal all wounds. This is particularly true in catastrophic cases involving the loss of a loved one or legitimate sexual harassment suits where the plaintiff feels he or she was just “bought off,” or paid to shut up.
Other cases can be difficult to settle where (1) there is no real money available to fund a satisfactory settlement; or (2) there are residual questions that need answers money can’t buy (“What caused the car to catch on fire?” or “Why wasn’t he fired long ago if others complained?”) Taking the “usual” approach, focusing purely on dollars and cents, might not get the job done. In these circumstances, it can be very healthy and helpful for the mediator to engage in the kind of counseling approach unique to transformative mediation. I’ve also been involved in cases (some very serious) that went away with no exchange of money where the defendant’s counsel or a knowledgeable employee took the time to explain to grieving parties exactly what happened and how it happened. Plaintiffs may want most of all just to vent frustration or anger. A party that feels he/she has been finally “heard” can be more reasonable, making it possible to settle an otherwise impossible case to settle.
Transformative mediators certainly are not appropriate to every dispute. For example, when I’ve accompanied very skilled or sophisticated client representatives to mediations, they look for ways to control the negotiation process, and can be incapable of suspending the factual or legal controversy long enough to permit a wounded plaintiff simply to be heard. They want only to drive home the point that the plaintiff is wrong and she will lose at trial. In this environment, neither the plaintiff nor the defendant will believe their needs are being met and compromise becomes unlikely.
* Citing, Bush, R. A. B., & Pope, S. G. , “Changing the quality of conflict interaction: The principles and practice of transformative mediation,” Pepperdine Dispute Resolution Law Journal, 3(1), 67-96.
The Defense Research Institute (DRI) is seeking new members and I promised to do my part with this public service announcement.*
I’ve belonged to DRI since my first year of practice and I have found it to be a great resource and, at times, a lot of fun. Over the years, I’ve belonged to the Young Lawyers, Products Liability, Trial Tactics, Alternative Dispute Resolution, Commercial Litigation and Employment and Labor Law Committees. With a few exceptions, I’ve tried to hit at least one conference every year, often in Chicago, but sometimes in really exotic destinations like Scottsdale or Las Vegas.
The benefits of membership include well-planned, well-executed conferences, a monthly print magazine, For the Defense, which generally has focused and relevant articles, and multiple online e-newsletters. There are expert witness databases and certain substantive law committees have very active listservs. There’s also a blawg, DRI Today. The real benefit from my perspective, though, is the opportunity to belong to an (inter)national** network of thousands of practitioners who can serve as both referral sources and substantive law resources. I met some great people at the conferences and I’ve kept in touch and tried to refer business to many of them over the years.
Take a look at DRI. There’s a discounted membership for lawyers practicing 5 years or less. And if you’re interested in joining, let me know and I’ll hook you up.
*With guitar!
** Including Canada.
I know that I am not alone in feeling the inclination sometimes to dispatch a really sharply worded letter or email to my opposing counsel. I’m talking the kind of letter that says a big, snotty “so there!” so often it feels like a one-two punch twice in every paragraph. I know I’m not alone in this urge because I’ve been on the receiving end of such letters and emails from opponents whom I discovered later to be, deep down, pretty nice people.
I’ve contemplated why we feel the urge to do this and, further, why we indulge it more frequently in writing than in person or over the phone. I believe it’s a manifestation of the fight-or-flight response that is apparently part of being human. But I also believe we find it much easier to take an aggressive tone with someone when our communications are mediated by time and distance. Using myself as an example, I have at times written aggressive things in correspondence that I would never have had the gumption to say in person or over the phone.
Let me go on record saying here that, in all but a few instances, I’ve ultimately regretted taking an “uppity” tone in letters to opposing counsel. This is so true that I’m very sensitive to the tendency now. I take care not to send a message or letter that I’ve written when angry, hungry, over-caffeinated or all three, at least until I’ve given myself an interval to cool off and critically re-read what I wrote. The reason is that, on balance, I’ve vastly preferred the practice of law–and procured better results for lower fees–when I’ve tried to maintain a cordial relationship with my opposition.
It’s not always possible. Cordiality, like professional courtesy, is a two-way street. If my opponent mistreats me, I’m not going to be a doormat. And, during the course of a case there is bound to be occasions when we rankle one another. It’s unavoidable in a practice–litigation–in which we are inherently at cross-purposes. On the other hand, if I’ve stayed professional in my written communications, I find it vastly easier to get along in person.
The absolute worst situation is where I’ve not met in person or established any kind of relationship at all with my opposition other than an exchange of letters laced with snide comments. When the time comes for one of us to ask a favor (and that time always comes) and a phone conversation is required, there’s nothing worse than trying to shrug off the ill feelings that have accumulated through our letters. “How are you today” just sounds hollow. The balance of power in these circumstances is always tipped in favor of the lawyer who does not need the favor (an example of situational leverage, I assure you). I vastly prefer to be the one who’s taken the high(er) road and in the position of granting the favor than the lawyer who’s been asshole and is now on his knees begging.
A recent post on Legal Practice Pro, “When Substituting In, Beware The Pile Of Crap” warned about a risk faced by any lawyer who substitutes into a case in place of another lawyer: getting sanctioned for the unethical or bad lawyering of the predecessor. This is surely one of the bigger risks when you take over for someone else. But there are other things to think about when asked to “sub in,” particularly if there have been more than one lawyer who previously represented this client in the same matter.
I’m thinking in particular of the problem or “unworthy” client. Anytime you are asked to get involved in a case mid-stream, and there have been a succession of multiple lawyers before you who have either quit or been fired, I’m going to bet it’s the client, not the lawyers, who is the problem. Clients can be unworthy for a number of reasons: they fail or refuse to pay, or to pay within a reasonable time, they have unrealistic expectations of their lawyer, they ask their lawyer to act unethically, or some combination of these.
There is no question that many clients have legitimate reasons for seeking new counsel. Maybe the lawyer is unskilled, unethical, spread too thin, or just an ass to work with. But, if the same client could not make it work with two prior lawyers, and he or she is looking for a third, or a fourth . . . I say an alarm should sound: beware.
If you hear but cannot heed the alarm, and find yourself in the position of lawyer #3 (or 4 or 5 . . .), there are a couple of things you can do to reduce the risk that your engagement will end badly. First, learn and know the file before the substitution is signed and you take over. This can and arguably should include a heart-to-heart conversation with your predecessor(s). As uncomfortable as this can be, it’s worth the effort. Second, get a healthy retainer up front (assuming the matter is not a pure contingency fee case). Most important, though, take the time to have an in-depth conversation with your new client and pay particular attention to whether his or her expectations about your involvement and the outcome of the case are realistic. Unless your predecessors were first class idiots, avoid making promises or representations to the effect that you can guarantee a better outcome. Because you simply can’t.
