When I started practicing, around twenty years ago, the art of trial advocacy embraced the concept of storytelling as a central way of communicating the plaintiff’s cause to the jury. The convention, at that time, seemed to focus largely on plot, with the plaintiff as protagonist in his or her own life’s story. The jury would hopefully be sympathetic to his or her plight, and write a happy ending.
At some point, the focus turned to point-of-view. In our tobacco litigation, for example, it became important (at least in our mind) to tell the story around the defendant, as antagonist, so that the jury would focus on its bad choices, rather than potentially second-guessing the plaintiff.
Robert McKee, who was popularized in the movie Adaptation, has been teaching the art of storytelling to aspiring screen-writers for years. In his construct, the narrative is centered on character. “True character” he explains, “is revealed in the choices a human being makes under pressure – the greater the pressure, the deeper the revelation, the truer the choice to the character’s essential nature.”1
As lawyers, we make hundreds of choices in the representation of our clients. Sometimes the stakes are higher, and the pressures greater. But in all of the choices we make, our true character is revealed.
Ethics and Professionalism
Several years ago, the Supreme Court added an hour of professionalism to the annual requirements for continuing legal education. Every December, lawyers would pack into these last-minute seminars during lunchtime where the majority of the hour seemed to be a discussion of the difference between ethics and professionalism:
Professionalism is aspirational. Ethics are required.2
I personally look at the distinction a bit differently. Ethics, in my mind, are primarily concerned with the duties that a lawyer owes to his or her clients, while professionalism is primarily concerned with the relationships between attorneys and their co-counsel, opposing counsel, the court, and the profession.
In any event, an attorney can be safely guided in most circumstances by sound litigation strategy. As a general proposition, the approach most likely to advance the case to a successful conclusion will also be the approach which advances the attorneys’ own interests, courtesies to opposing counsel, appropriate respect and deference towards the court, and the highest standards and ideals for the profession. The precepts of ethics and professionalism step in to resolve circumstances where such interests might be in conflict or otherwise tend to diverge.
The Rules of Professional Conduct and other Codes of Professionalism, at the same time, tend to resemble either criminal or regulatory statutes, proscribing specific bad acts, or vague and general ideals which may provide little guidance for a particular situation.3 The Rules do not tell you, for example, what motions to file or oppose; when or how or on what basis to recommend settlement; when to withhold or disclose trial strategy to opposing counsel; which cases to accept in the first place. These sometimes significant, and difficult, questions of ethics and professionalism are resolved (perhaps without notice) in the choices we wrestle with as attorneys every day.
Identifying and Defining the Interests
In conducting a choice-of-law analysis, the first step is determining whether a true conflict exists.4 Similarly, the first step in the consideration of a potential ethical or professional conflict is the appropriate identification of interests at stake.
As we all know, clients have desires or expectations concerning litigation which seem trivial, unrealistic or misplaced. This is not to say that non-pecuniary motivations or irrationally inflated wishes should be automatically marginalized or discounted. The attorney must be both an advocate of the client’s position and, at the same time, a professional exercising independent judgment and advice.5 The lawyer must candidly communicate with the client regarding such matters,6 and must respect the client’s decision with regard to the settlement or other ultimate aims of the litigation.7 Nevertheless, particularly where the means are concerned, just because a client wants something doesn’t necessarily mean it’s in his or her interests.8
At the same time, we all as attorneys have varying motivations, including not only the desire to earn a fee (which is generally aligned with the interests of the client in the typical contingent percentage-fee situation), but also, perhaps, the desire to conserve financial resources, make law, avoid personal or potential business conflicts, gain trial experience, avoid trial, save time, pursue cases which are intellectually or morally stimulating, get even with or best an adversary party or attorney, uphold some sense of justice or fairness, enhance reputation, secure other business, or generate publicity. These interests must be recognized and viewed with an appropriate sense of proportion and legitimacy.
Finally, there may be considerations advanced by an opposing party, third party or the court, which may or may not be legitimate. The desire, for example, to conserve time or expense in avoiding overbroad and potentially unnecessary discovery may be a legitimate interest; while an attempt to avoid disclosure of relevant and prejudicial evidence is not.
In balancing the potentially divergent interests of clients, counsel, opposing parties, or the profession itself, it is important to understand the nature and significance of the interests at stake.
Generation and Acceptance of Cases
There are, of course, formal Rules which govern the marketing of an attorneys’ services,9 the contingency fee contract,10 the association of co-counsel,11 and the advancement of litigation costs and, in some cases, living expenses.12 But on a more fundamental level, the cases an attorney seeks and accepts, and the manner in which such cases are sought and accepted, are inherently related to the attorney’s view of himself or herself in relation to his or her clients, the prospective opponents or adversaries, the factual issues or social implications raised by the matter, the law, and the profession.
As noted, lawyers may have myriad interests in handling a case other than the generation of a fee. Where such interests may be in conflict with some of the interests of the client or others, ethical or professional principles may dictate that the attorney reject the case, or associate co-counsel to perform one or more functions, or agree to handle the case on some modified basis.
Choosing Your Discovery and Other Battles
Some attorneys believe that every battle is worth engaging. That by making the defendant and defense counsel spend money, waste time, and otherwise work the file, the plaintiff will wear them out and beat them into submission. There are, of course, some motions or oppositions which are essential to the successful prosecution of the case. But for most attorneys, in most cases, there are a broad number of issues which may or may not be pressed, to varying degrees, in the attorney’s discretion. How the attorney exercises his or her discretion is often a matter of advancing, not only the client’s interests, but also the attorney’s own interests, or the interests of other clients; a function of the attorney’s relationship with opposing counsel, the opposing party, or the court; or a result of the attorney’s view of the moral or societal issues, the law, or the profession.
Many motions and oppositions, in this respect, seem to be advanced out of an attorney’s sense of what is “right” or what is “fair”; a motivation to put an opponent or an opposing counsel in his or her place; an urge to “set the record straight”; a desire to “get even”. Particularly where the attorney believes that his opponent has done something unethical or unprofessional. Yet in many cases, it seems to me, the urging of motions or opposition – and particularly motions which suggest that the opposing party or counsel has been unethical or unprofessional – and particularly where such motion or opposition seeks sanctions or petitions to hold the opposing party or counsel in contempt – are, in fact, counterproductive to the interests of the client, or, at best, a waste of time and effort.
My uncle likes to say that he asks himself one question: “How does it advance the interests of my client?”
I would modify that inquiry just a bit, to: “How does it advance the interests of my client or the profession?”
Of course, it is somewhat subjective and otherwise difficult to identify the interests of the profession. But what I try to look for are systemic issues which seem to cut across a broad number of cases.
When an opposing counsel, for example, misses a deadline, or stonewalls on discovery, or tries to back out of what I understood to be an agreement or stipulation, the court may agree with me in that particular case, but it will not likely have an effect on the judge’s thinking about issues generally, or the disposition of any other cases. So, under those circumstances, I simply try to distinguish the motivation to vindicate my own (or my client’s own) slights or offenses from matters which will truly advance the interests of the client in the case.
When, however, the conduct or other matter goes to the heart of a disturbing trend or apparent misconception in the law, then I tend to view an attempt to vindicate that principle as a service to the profession. Just a few examples may include:
- Use of confidentiality orders or agreements, which are entered on the pretense of protecting trade secrets, for the true purpose of preventing the sharing or admission of relevant evidence in other litigation;
- Representations to the court which are not inconsistent with the existing record, but which are contradicted by evidence or other information in the attorney or client’s possession;13 or,
- The notion that defendant’s expert testimony should be withheld, so that he or she can opine, not on the underlying facts (which are equally available to all parties), but on the opinions of the plaintiff’s expert.
I am frequently inclined to press these types of issues, even where it might not necessarily advance my client’s interests, because a victory might have a direct or indirect benefit to other litigants, the state of the law generally, and the ideals of the profession.
The Settlement of a Case
We sometimes seem to forget in personal injury or other cases that we are attempting to translate pain and suffering, inconvenience, embarrassment, humiliation, loss of enjoyment of life or other emotional distress into dollars and cents. There is an argument to be made, along these lines, that a claim for general damages has no objective “value”. Or at the least that, while we can make educated guesses based upon past experience, no one really “knows” what a case is worth, (until the end of the case). Attorneys are, nevertheless, expected to recommend settlement to their clients.14 And clients, generally, expect their attorneys to know what the case is “worth”.
Complicating matters further, it is often irrelevant, in my experience, what a case is theoretically “worth”; resolution seems to turn more on what the litigants “want” or feel that they “need” to pay or be paid.
The plaintiff’s attorney therefore has to consider:
- What the client wants to get out of the case
- What the client “needs” to get out of the case
- What he or she wants to get out of the case
- What he or she “needs” to get out of the case
- What he or she believes the case to be “worth”
- What he or she believes the defendant will actually pay
Trying to convey all of that information – and all of the complex legal and factual bases, risks and contingencies from which it is derived – in a way in which it will be understood and appreciated by the client is one of the most challenging things that an attorney can be called upon to do in the course of litigation.
What do you tell the client? And when? What, if any, information or opinion can you withhold? How do you frame the information or advice that you are giving?
Is it the attorney’s responsibility to help the client get to the “right” result? Or simply what the client “wants”? Or whatever maximizes the client’s financial or other interests? Or is the attorney simply supposed to provide the client with all of the relevant information, and let he or she decide?
While several different arguments from the Rules or from personal experience could likely be made, the way in which an attorney wrestles with and resolves these difficult questions lie at the heart of ethics and professionalism.
Through the choices we make, our character is revealed.