Horror tales from the bench and Beach

I recently attended a continuing legal education (CLE) program put on by a retired judge. I always profit from listening to lawyers whose years of experience offer perspective on the profession. When a client of mine needed a temporary restraining order a couple of years ago, the CLE speaker, I'll call him Judge Beach, was the presiding judge. The judge assigned to the case was unavailable, so I made my argument to Judge Beach. Opposing counsel made what I believed to be an incredulous argument, which the judge saw right through. Then, however, he set a high bond, which aggravated my client. After several years of litigation, and millions of dollars in legal fees, maybe the judge's number made sense.

The actual CLE topic was "Horror Stories from the Bench." When I am not out on the town on Saturday nights, I watch horror films like Claude Rains' "The Invisible Man," so I guess the CLE topic fit my preference. The newly retired judge had plenty of diverse experiences to share. The narrative of his life revealed both the ability to adapt to areas of the law when opportunities arose, and a general humility about what he didn't know, a fine quality, not displayed often enough by lawyers.

Some of his stories actually were horrific. He told about one instance when he entered an Order of Protection to keep a male away from a female. The male immediately bought a gun, shot the female and himself, and left the Order of Protection on the ground between them. On the other side of the coin, he told the story of a litigant who informed him that she had his framed picture on a table by her front door. She said that she and her kids touch it when they pass through the door because he was the only one who would ever listen to her about their domestic violence situation. Judge Beach told us, "You never know when something you do is going to have an important effect on people."

The talk centered around common sense and issues of lawyer credibility. Sometimes, in the fog of conflict, lawyers cross the line from zealous advocacy to dishonesty. It is almost always impossible to recover once that line is crossed. Further, despite the fact that the general public thinks lawyers are "smart," that is a relative term. I've recently been dealing with an in-house attorney who doesn't seem to have any common sense at all.

At the CLE, Judge Beach told a number of tales regarding lawyer credibility, including the time a lawyer called to tell him because he was in bed, throwing up, he couldn't possibly be in court that morning. The judge said, "I understand and hope you feel better soon," but as he turned towards the window, still on the phone, he saw the "bed ridden" lawyer talking to him on his cell phone from the parking lot below. The judge didn't exactly quote the specific words that followed. Judge Beach added that judges have "books on lawyers" and, through Al Gore's internet, getting information on a lawyer who is new to a judge is not difficult. We should never forget that our reputations often precede us, and certainly follow us. Of course, a lawyer's credibility is not just important in respect to perception by the judiciary, it is also important in our relationships with the lawyers with whom we "fight."

As the year is winding down, I have been settling some cases. In listening to Judge Beach's stories, I was keenly aware of both credibility problems, and judgment questions, I was experiencing with opposing lawyers.

In one of those cases, the opposing lawyers were awful. They fell into the lack of credibility department. I heard that they had a reputation for intentionally running up costs to squelch the enthusiasm of the opposition, and perhaps to line their own pockets. In my case, they certainly seemed to be causing unnecessary legal fees. They played games, like calling me for scheduled "good faith" discovery conferences, hanging up the phone up after three rings, and then insisting I had refused to talk to them when I would immediately call back and they wouldn't answer.

I was enthusiastic about trying the case because I believe unseemly tricks don't get a lawyer too far in the end. They weren't likeable, and I didn't think they would do well in front of a jury. Then, prior to trial, other lawyers, who were both skilled and pleasant to work with, replaced them. Trying the case against the likable lawyers was going to be more formidable than against their predecessors.

In another recently settled case, I dealt with an in-house counsel who didn't seem to me to have the first clue about legal strategy, or common sense. I don't know if he lacked experience, temperament, or intelligence, but something was plainly wrong. As lawyers know, the in-house counsel is the "boss," qualified or not. It is a trial lawyer's job to get the best result he or she can for their client, and when the in-house counsel makes decisions that appear wrong, or outright dumb, to the lawyer on the field of battle, it is rather taxing.

In fact, the in-house counsel suggested I settle the case for two million dollars. I told the client I understood legal fees were mounting, but that we should stay the course, and that I thought I could obtain a jury verdict in the neighborhood of $4 million. As we got closer to trial, I devised a "creative" theory to enhance our claim for damages, and to put pressure on the defendant to settle. I didn't know if it would work, but I also didn't believe the opposing counsel wanted to try the case. Two weeks before trial, he made a "final offer" of $4.6 million dollars. I told the in-house counsel we should accept the offer and do a victory dance because the company would be recovering more than double what he told me he wanted to settle the case for only months earlier. I closed my argument to him with the time honored, and well tested legal maxim, "Pigs get fat and hogs get butchered." It didn't work; he insisted I "squeeze out" another fifteen thousand dollars, or go to trial. I explained that we were billing about seventy-five hundred dollars a day in preparation for trial. If it took two days to "squeeze out" another fifteen thousand dollars, the company would be even, but if it took three days or more, the company would be behind.

Nevertheless, days went on and the settlement appeared to be slipping away. I continued to prepare for trial, lying awake at night for hours, thinking about voir dire, the type of jurors I wanted, and fine-tuning three critical points into an opening statement that would properly frame the case for the jurors. I planned to have the case all but won by the time the jury was picked and my opening statement was given.

Finally, my admonitions and warnings to the client to take the settlement sunk in, but giving such advice to a reluctant in-house counsel is precarious for a lawyer. We don't want to be perceived as too cautious or afraid to try the case. However, experience told me that it was time to pick up the chips on the table, rather than gamble on crushing the other side from pebbles into dust.

An in-house counsel position is a hybrid of client and trial counsel. It is easy for them to act too much like a client, seeing only one side of the coin, and not enough like a lawyer, who needs a more detached view. In the end, I was glad I had the confidence to advocate for and secure the great result. Now, however, in the middle of the night, I think about how good the case was, and wonder if I could have brought in a $10 million verdict. Judge Beach would tell me to move on to the next one.

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© 2019 Under Analysis, LLC. Under Analysis is a nationally syndicated column of the Levison Group. Mark Levison is a member of the law firm Lashly & Baer, P.C. Contact Mark by e-mail at mlevison@lashlybaer.com.

Published: Fri, Nov 08, 2019

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