A TALE OF TWO LAWYERS

My husband, Bill, and I had dinner recently with two lawyers who had appeared regularly before me and eventually became social friends, joined by their spouses. After a few glasses of wine the conversation turned, as it does with increasing frequency these days, to the “good old days” and the raucous courtroom adventures they had had, particularly at the expense of judges. For the purposes of this tale, I will call them Rob and Pete.

“Do you remember that tough train case we had back in the late 80’s?, Rob asked. “You almost got sent to jail on that one.”

“What do you mean ‘almost’, Pete quipped. “I did get sent to jail. Don’t you remember?”

“Oh yes, now that you mention it,” Rob replied.

“Tell! Tell!”, Bill and Rob’s wife, Jane, the only non-lawyers present, interrupted. “We want to hear the story.”

And so they did. It turnout Rob and Pete “faced off” in an extremely contentious train case—lots of chest banging, strutting and snickering. The judge was not impressed. He was anxious to settle the matter before spending at least one day on jury selection only to have the case resolve prior to opening statements.

“We’re not calling for a jury panel until we exhaust all avenues of settlement,” he announced. “ And, I want an adjuster, with authority, in my courtroom within the hour.”

Pete, who was defense counsel, immediately panicked. His adjuster, who was based across the river in South Jersey, had adamantly refused to be present, knowing a state court judge could not order him to appear across state lines. He also adamantly refused to give Pete more than “nuisance value” on a case with both serious liability and damages issues. After a half hour of begging and pleading, Pete?gave up.

“My client will not be appearing, Your Honor", he began. “He feels this is only a ‘nuisance value’ case and, he knows you cannot order him to appear out of state. I really tried and I am sorry, Sir.”

At this the judge went ballistic. “What! Your adjuster is refusing to appear voluntarily pursuant to my Order? That is extreme disrespect on his part and on yours. It appears to me this is nothing more than a defense delaying tactic. I’m calling for my court reporter. We are having a contempt hearing.”

Poor Pete had no choice but to go along with the program. The court reporter arrived. Rob and Pete took their places at counsel table and the judge made his record. And, what a record it was—When he got through one would have thought Pete, himself, had caused the train wreck and personally refused to present his adjuster with adequate settlement authority.

Having made his record, the judge placed a cherry on top of the sundae.

“I want you to apologize for disrespecting me or I am going to sentence you to jail time for contempt,” he ruled. “What’s it going to be?”.

“I didn’t advise my adjuster not to come and our offer was not all that bad to jump start negotiations” Pete protested. “I don’t think an apology is necessary.”

“OK, if you won’t apologize voluntarily, I am sentencing you to the county jail until you do. Call the Sheriff,” he shouted.

“Wait a minute, Your Honor, Rob finally chimed in. “I’m satisfied with the offer if there will be more offers later and my client is anxious to pick a jury and have his day in court.”

“You should take my advice and stay silent unless you want to join opposing counsel in the cell room,” the judge strongly advised.

That shut Rob up for the moment and Pete went quietly off to jail. But, that was not the end of it. Rob called Pete’s partner instantly and hustled her over to City hall to represent Pete. Then he took a ride up to the seventh floor holding cells (This was City Hall in the 1980’s remember) and instantly took over Pete's representation as co-counsel so he could impress upon his adversary the importance of apologizing to this newly assigned civil judge who, evidently, still thought he was sitting in a criminal courtroom. By the time Pete’s partner found her way to the seventh floor cell room, Rob had convinced Pete to apologize with fingers crossed behind his back.

And so court was reconvened with Rob and Pete’s partner both representing him as he tried earnestly to convince the judge two hours in a holding cell had made him truly repentant. It worked. The judge released Pete on the spot as he had gotten his pound of flesh, the jury was selected and the case settled the next morning with a cameo appearance by the recalcitrant adjuster. Best of all, Rob and Pete became fast friends, as well as battling adversaries.

And, what about the judge? By this time you may have guessed the “He” was a “She” and the “She” was me. Over the years I have apologized to both Rob and Pete multiple times for my behavior that day. As a newly minted civil judge, I had yet to get my sea legs: learning when and where to invoke the majesty of the court; how to season a pound of justice with several liberally sprinkled ounces of compassion; how to judge without being judgmental. But that is only one take away from this tale. What I saw over my thirty odd years of judging was a changing legal culture with less and less civility and camaraderie among lawyers. Not every case requires jousting in a medieval arena; beating each other to the punch; the loser lying in wait for the winner in the next case.

Rob took a big chance standing up for Pete. He could have ended up in the same cell, or worse, to the detriment of his client and his reputation in the legal community. However, he didn’t turn away or enjoy Pete’s humiliation because he knew the right thing to do was to advocate for opposing counsel who was being unfairly treated. I firmly believe good lawyering requires not only civility but loyalty to each other and to our profession whether we are sitting on the Bench or litigating from the Bar. I have seen excellent examples of professional cooperation in repetitious litigation such as asbestos, pharmaceutical, nursing home and FELA where attorneys face each other on a daily basis. We could all take a few ethical tips from them.

An asbestos defense attorney recently shared an experience from his first asbestos jury trial. His mother died during jury selection. Expecting this possibility, he had prepared co-counsel to take over the case should it become necessary. Much to his surprise, plaintiffs’ attorney as well as every defense attorney?appeared at his mother’s funeral. His co-counsel told him they had unanimously agreed to seek a continuance, even though competent co-counsel was prepared to try the case. The group told him they acted out of respect for his family even though, at that point, not a single one of them knew him personally. He told me, over the past thirty years, he has?held himself to that standard set for him at his first asbestos trial.

If opposing counsel needs an extension or a change of deposition date or a favor when coping with a personal issue, remember you will one day be in a similar position and will want the same consideration. And, years from now you may be sharing a glass of wine with a close friend you made on the battlefield and with whom you shared raucous courtroom adventures. You will be better for it. And, so will our profession.