As I approach my 39th anniversary of practicing law on May 3, I can honestly say I have adjusted to the mountains and valleys of the practice of law. This adjustment has come from facing the realities of handling cases.
First, I have realized that I do not make the facts of the case. Little good comes from worrying about the facts.
Second, I have little control over what a witness states under oath. I can prepare the witness all day long and alert the witness to the dangerous areas of testimony, but I always tell the witness that I may have input on how the witness says something, but I will not tell the witness what to say. Telling the truth is paramount. Telling a witness what to say is called subornation of perjury, which is a crime. I am not naïve, and I know that subornation occurs more than it should, but I refuse to engage in that practice.
The third adjustment is the realization that all clients are not perfect. I do have total control over who my clients are. If I were a defense lawyer, I don’t have that luxury. In most cases the insurance company picks the lawyer representing the defendant in a civil case, and when the defense lawyer agrees to take the case he cannot take a pass on representing a client if he or she wants more business from the insurance company. There is this strange three-way relationship between a lawyer who is paid by the insurance company but who represents the defendant. It is perfectly legal and unavoidable, but I sympathize with the defense lawyer who is assigned a client and does not pick the client.
Unfortunately, client selection is not perfect. Our agreement with the client provides that we can withdraw from the case if we don’t think the case has merit, and we are also able to withdraw if the client insists on doing something unethical. However, withdrawal from a lawsuit filed requires court approval and is subject to ethical rules. Fortunately, this has happened very few times in my experience.
We have sometimes joked that we wish we had a designated plaintiff somewhat like the designated hitter in baseball, someone to stand in for the plaintiff. Of course, that proposition is absurd, but sometimes you don’t really understand the weaknesses in your case until after the client testifies in a deposition.
Last week, I had a couple of valley experiences that make the practice of law less enjoyable. I produced a client for her deposition in one of my cases and she failed to remember some important facts that we had talked about and she had remembered before the deposition. We can overcome her testimony, but it did create a problem that was avoidable. If I had not prepared her for it, I could blame myself, but once she raises her right hand and takes the oath to tell the truth, I lose control.
Then later in the week, I produced an expert witness for a deposition by opposing counsel. I had retained the expert to examine my client and testify as to the nature and extent of the client’s problems and to the cause of those injuries. The expert was a physician and had been provided an extensive amount of medical information to review prior to the deposition. I had met with him a couple of months ago and had prepared him for some of the points of attack.
Once the deposition began I discovered that he had done very little to prepare for the deposition by refreshing his memory on the medical records. We pay the expert to review the records, and we don’t mind paying the expert to be well-informed. The expert did so poorly in the deposition that we had to stop the deposition and we will have to retain another expert witness. At certain points, there were long pauses between the question and the answer. The pauses were painful. I had never used the expert before and he had been recommended by others. I will not be recommending him.
The same day that I produced the expert, I also took the deposition of a doctor in another one of my cases and it did not go well. I had taken the deposition of a co-defendant in the same case a couple of weeks earlier and it was one of the best depositions I had ever taken. The lawyer talked about settling the case after that deposition.
Then the lawyers for both defendants produced the co-defendant for deposition and it was apparent to me that the second co-defendant had constructed a defense after the first deposition. The problem with constructing a defense is that you cannot construct the facts and so I spent some time building a method of destroying the constructed defense after the deposition. While you cannot create facts, you can organize them in a particular manner and put them in the proper context. It is the challenge of being a lawyer – put the hiking boots on and begin climbing when you are in the valley.
I used to lose sleep a lot more over my cases than I do now. I still occasionally wake up in the middle of the night to think about a way to make my way back to the mountaintop. Mountain climbing is still fun and worth the trip. The view is much better up there.
Bob Buckley is an attorney in Independence, www.wagblaw.com . Email him at firstname.lastname@example.org.