Monthly Archives: June 2014

CIVILITY TOWARDS CLIENTS – Be Nice or Get Sued

“What I want is to be locked in a room naked with you with a sharp knife.”  We can probably look back at this comment made by a prominent South Carolina attorney to an opposing party during a deposition in 1998 as the event that finally exhausted the patience of our Supreme Court and as the advent of the new Lawyer’s Oath (or Oath of Civility) which was mandated by Supreme Court Order on October 22, 2003.  Prior to the new Oath, decorum in the practice of law had experience a slow but steady decline from an erudite game of gentlemen (and gentle women) to a full contact legal version of the ultimate fighting championship.  The fact that we were all sliding down the slippery slope should have come as no surprise.  After all, what should one have expected to happen when highly competitive individuals are thrown into a marketplace that was shrinking due to the rising number of lawyers, while at the same time the onslaught of lawyer advertising created the appearance that the rules of engagement were significantly softened?  In the new marketplace for legal services, something terrible also happened to clients.   For too many lawyers, clients became files or worse – property.  From our point of view, lawyers became so consumed with fighting to get clients and fighting with one another that the willingness to take the time to create an actual attorney client “relationship” got killed in the crossfire.

Our practice has a strong emphasis on legal malpractice claims.  For the most part, we believe it remains true that friends do not sue friends.  A significant number of the potential clients who contact us to express very legitimate upset or displeasure about their prior attorney are clients who really enjoyed no relationship with their former attorney whatsoever.  To the extent that there was contact between the attorney and the client, we often hear that the contact was discourteous, non-responsive, and yes, “uncivil.”   When the lack of a real relationship is combined with the perception that the client was ignored, demeaned and disrespected, it is not hard to imagine that a claim will be forthcoming after a bad result.  Bottom line:  clients deserve civility too and we should all consider a new civility oath to clients:

  1. Be timely responsive to client’s questions and concern for issues;
  2. Timely return phone calls and emails to clients;
  3. Provide written periodic status updates to the client on the matter;
  4. Provide copies of written documents that are generated in the litigation or legal matter;
  5. Be honest with the client and don’t create false expectations about a result to be obtained or when a matter will be heard by the court;
  6. Be candid with the client when the client is not being forthcoming with all facts or when certain facts are uncovered that changes the legal issues or may affect the client’s ability to recover;
  7. If the client terminates the representation, timely provide the client with the complete ORIGINAL legal file (We have countless anecdotes of small and large firms dragging their feet in not providing the client with their legal files or holding files ransom for more money/fees that may be in dispute);
  8. Do not circumvent the rules of client communication and try to “end run” an attorney who represents a client by trying to communicate with the client directly; and
  9. After the representation terminates (and especially if it ends badly), do not confront the client in a public place or speak badly of the client. (ie.  Don’t call your client a “m**!! F****er” in a restaurant – true story).

For the attorney readers of this post, don’t foster real attorney client relationships just because it will help avoid future claims.  Do it because clients deserve it and because it makes for better representation.  The fact that it may help avoid a claim in the event a mistake occurs is just a bonus.  For the client readers of this post, you are entitled to the attention and respect of your chosen counsel.  That is not to say, however, that you have a realistic expectation to like the advice that is offered, but it should be offered in a timely and respectful manner.  As in all relationships, there has to be room for disagreement and for reconciliation.

If this post comes off a tad pious, we ask for your tolerance.  The intent is to share a candid view of the complaints that we receive and why we think we receive them.  If it helps to foster better relationships and avoid future claims, terrific.  If it is dismissed outright as impertinent and inapplicable, then maybe our paths will cross down the line.

Eric Bland and Ronnie Richter

 

 

I know it’s closing argument, but there are rules …

My partner and I recently tried a relatively simple auto accident case in a faraway venue.  We would be the first to say that we love the sport of closing argument because it is the chance to step in the ring mono a mono and engage in some good old-fashioned advocacy.  Without sounding as if we are complaining that somebody kicked too hard in a butt kicking contest, something occurred during the closing argument that remains a spur in our sides and which should be concerning to all of us as lawyers.

In closing argument, defense counsel made the following comment:

“What this case is about, is about this (indicating – holding a photo of the destroyed vehicle):  goin’ into a plaintiff’s attorneys office.  What does a plaintiff’s attorney see when he sees this (indicating) picture?  He sees dollars signs.  So the plaintiff took this (indicting), took this photograph to two plaintiffs attorneys who have come up from Charleston to try this case, they say dollar signs when they saw this picture.”

At the time, it was our judgment not to draw further attention to the comment through objection.  Instead, we simply returned fire in rebuttal and dismissed our opponent as a hypocrite.  So here is the rub and where it concerns us and the future of our profession.

Closing argument is a time to reflect on the facts and evidence in the case.  The attorneys (on both sides) are NEVER part and parcel of the facts or the evidence.  Rule 3.4(e) expressly states that a lawyer shall not “in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence.”  The same rule further restricts counsel from stating a “personal opinion as to the justness of a cause.”  Clearly, arguing the alleged motives of plaintiffs’ counsel in a case is a reflection on matters that are outside of the evidence and is nothing more than the expression of a personal opinion about the justness of the case itself.

Perhaps one may see this as a hard foul on the field of play that has little to do with the bigger picture and much to do with the bruised feelings of the recipients.  To view this matter so myopically is wrong.  As lawyers, we have duties not only to our clients, but also duties to the court and to the very administration of justice itself.  To emphasize a point that shouldn’t require emphasis, Rule 8.4(e) states that it is professional misconduct to “engage in conduct that is prejudicial to the administration of justice.”  To argue, as our nameless friend did, that we as plaintiffs’ counsel were somehow involved in a legal scam or fraud is to suggest that what the jury should not trust is the system itself.  The closing argument could easily be restated as follows:  “Don’t give the plaintiff money because these guys are a bunch of crooks.”  It was nothing short of an indictment of the civil justice system.

Through ridiculous advertising and highly publicized stories of lawyer greed, our profession is doing quite enough to destroy the integrity and credibility of our system of justice without having the erosive effects exacerbated through misguided personal attacks between counsel aired out in front of an audience of jurors.  For our part, we will address this matter with the Bar and hope they will provide guidance.  For your part, we ask that you join us in holding the line on this issue and in preserving whatever remnant of dignity that remains in our profession.

Ronnie Richter and Eric Bland

We are Trial Lawyers

For most of the normal “non-lawyer” world, lawyers are professionals who go to court and who try cases.  Nothing could be further from the truth.  In reality, most lawyers find career paths through which they never (or very rarely) go to court, such as government lawyers, in-house corporate attorneys, real estate attorneys, tax attorneys and others.  From the remainder, many boast to be trial attorneys although they have never tried a single case.  So what then gives an attorney the right to claim, as we do, that they are “trial attorneys”?

It seems fundamental, but it needs to be said – trial attorneys actually try cases.  Trial attorneys champion causes for their clients, whether it be to recover from a terrible loss or to restore someone’s dignity or reputation through the litigation process.  If you talk to a supposed “trial lawyer” who says that they have never lost a case, you are likely talking to someone who has never tried a case.  It is an inevitable and cruel reality of being a trial lawyer that you experiences both victories and losses.  As most trial lawyers are extremely competitive people, losing a case is painful and results in legal scar tissue that apparently lasts forever.  Ironically, it is this very scar tissue that the consuming public should seek out.  The scar tissue represents the wisdom of experience.  It demonstrates the years in the ring.  Hopefully, it provides the breadth of experience that will help give better counsel to a client who appears to be approaching an important crossroad in their own legal batter.  If you can whether the scar of a terrible loss and fight again uninhibited by the fear of repeating the experience, then you are truly a formidable advocate.  We have certainly won and lost cases.  While the wins are rewarding, the losses burn to this day.  We can comfortably say that more has been learned from losing than from winning.

So what is the point of this demi-rant?  It is really twofold.  One the one-hand, it is an expression of some frustration over those attorneys who claim the title “trial lawyer” without having earned the right through battle.  On the other hand, it is cautionary tale to the consuming public to encourage anyone seeking legal services from an attorney to ask real questions.  Do you try cases?  Have you tried a case like mine?  These are fair questions and no client should feel uncomfortable when hiring counsel to probe into the experience of the person behind the desk.  After all, there may come a day when that person may have to get out from behind the desk and stand and deliver in a real courtroom.  We’re sure you would like to know that they have done it before walking in with you. Also, having tried cases, a trial lawyer knows when a case should be litigated and tried and when it is prudent to settle a case without protracted litigation or not bring it all. A lawyer who blindly and recklessly says let’s go try a case, not try and work and mold the adversary’s thoughts about the case  risks and rewards, is simply a fool and not a trial lawyer. The point is that a true trial lawyer knows when to recommend to a client to litigate or come to a different resolution.

Eric Bland and Ronnie Richter

In a 50/50 Partnership, who does the lawyer really represent?

More and more, we are seeing in our practice occasions when an attorney who purportedly represents an entity (whether it be an LLC, LLP, Corporation or Partnership) blurs his or her duties and ends up favoring one partner over another in an entity that is supposedly owned equally. From our perspective, this is the essence of a conflict of interest and while it is certainly permissible to represent only the entity or only one or more of the partners, it is critical that the roles be defined clearly from the outset of the representation. As they say, “it only matters when it matters.” Well, it matters when the partners no longer see the world in the same shiny shade of blue. It matters when one partner “thinks” that the lawyer is supposed to be representing their interests, but perceives that other interests are in fact primary.

These are dodgy circumstances for any attorney and the true “entity attorney” must not advocate for one owner over the other in the instance when there is a conflict between the two owners. Instead, it is incumbent on the attorney to step aside in these disputes. Unfortunately, we have found with alarming frequency that the attorney doesn’t always recuse themselves, and, even more troubling, they may appear to pick and choose the partner whose interests are advanced. Not surprisingly, this tends to be the more financially sound member of the entity. Rather, the attorney, under the guise of representing the “entity” and not the “owners” will meet and communicate with the “favored” owner or the founding owner to the exclusion of the other owner. While the case law is generally supportive of the idea that the lawyer owes only a duty to the entity and not to the owners, in Lloyd v. Walters, 276 5.C.223, 277 S.E.2d 888 (1981) the South Carolina Supreme Court hinted that in certain circumstances in a two person corporation, the corporate attorney may actually owe individual duties to the owners to protect one of the owners from the fiduciary breaches of the other. Of course, the case law also assumes that the scope of the relationship between the parties has been a) well defined on the front end by the attorney and b) not expanded through a course of conduct.

Among the prickly issues surrounding the corporate client (and especially the small corporate client) is privilege. That is, only attorney client communications are privileged. If the attorney represents the entity and only the entity, then clearly the privilege extends to the entity – but what about the owners? Also, if the attorney is engaged in the joint representation of more than one client (with proper disclosures and consents, of course), then the attorney cannot engage in one-sided confidential communications with one client to the exclusion of another client. This ethical onion does not smell better as the layers are peeled away and it typically comes into play after a dispute has arisen between the owners of a small corporation and the attorney has by all appearances “chosen sides” by communicating with only one owner to the exclusion of the other.

For the attorneys, three rules: 1. Document the relationship. 2. Know your role. 3. Do NOT pick sides in a corporate dispute if you are in fact the corporate counsel. One thing is certain in a dispute between two owners of entity – one wins and one loses. Almost equally as certain is the following – the loser will not have liked losing and if the loser believes that “my lawyer” helped the other side, a lawsuit or bar complaint is foreseeable.

For the clients, two rules: 1.   Document the relationship. 2. Seek independent counsel if you ever feel that the neutral corporate attorney is favoring the other side (and don’t wait until it’s too late).

These are tricky waters, but they are traversed safely every day by competent attorneys who understand their roles and by well-informed clients who are actively engaged.

Eric Bland and Ronnie Richter

What do Jurors think when sitting in judgment and what do they say in the jury room during deliberation?

Lawyers are meticulous in their trial preparation.  We outline our cases, prepare witnesses, torture ourselves in planning the presentation of evidence and spend countless hours rehearsing opening and closing arguments.  Even with most mercurial of planning, however, the trial itself can be a game of chance because the most important element of a trial is the element over which attorneys have the least control – the jury.  Jurors swear an oath to accept the evidence as presented and to apply the evidence to the law as instructed by the judge.  Even so, it is impossible to expect that a juror is willing or able to divorce themselves from their backgrounds, biases and points of view which will color their perception of, well, everything.  What happens when these influences are so strong that they control over the juror’s promise to set aside bias and to apply the facts to the law?

In Lynch v. Carolina Self Storage Centers, Inc (Dec. 2013), an injured plaintiff sued for significant personal injuries that she sustained when a heavy door closed on her foot.   The medical bills alone for the plaintiff exceeded $246,000.00. The jury returned a verdict for the plaintiff in the precise amount of the medical bills ($246,068.42) and awarded no money for pain and suffering, permanent injury, etc.   Further, the jury held the plaintiff 50% at fault for the incident and the verdict was reduced in half.

After the trial, the plaintiff’s attorney communicated with the jury foreman and learned about some horrifying things that took place in the jury room – things that made it clear that the verdict really had little to do with the facts and the evidence and much to do with the biases and prejudices of the individual jurors.  A motion was made for a new trial based on juror misconduct and was supported by an affidavit from the foreperson attesting to the following events during jury deliberation.

  1.  One juror stated that she could not stand the Plaintiff’s attorney and for that reason was unwilling to award anything to the Plaintiff.  The juror was so steadfast in her position that she said would stay until “doomsday” before giving an award to the Plaintiff.
  2. Some jurors observed that the plaintiff lived beside a doctor and therefore it was speculated that the Plaintiff “must have money.”  Although not in evidence, the presumption that the Plaintiff had money led to the opinion that she did not need money.
  3.  One juror who was a bank employee offered, presumably from personal knowledge, that the Plaintiff had a large bank account and therefore didn’t need money.  When asked, “how do you know that? Does she bank with you,” the juror replied, “no”.
  4. The Plaintiff’s attorney apparently represented one of the juror’s ex-spouse in a divorce case, but the juror did not reveal this during jury qualification.  More importantly, she did not reveal her deep dislike of the attorney.

Clearly, the jury ignored the prime directive to apply the facts and evidence to the law, right?  Surely, this would create the right for a new trial, right?  Not exactly.  Our court affirmed the decision of the trial court not to grant the new trial motion and refused to disturb the jury’s verdict.  In essence, the court held that the foreperson’s affidavit was not admissible and could not be used to prove juror misconduct during deliberations because the jurors’ conduct at issue did not occur outside the jury room.   Had the decision of the jury been improperly influenced from “external” forces (ie. threats, bribes, etc.), then the court presumably would have ordered a new trial.  In this case, however, our court demonstrated its aversion to invading the “internal” decision making process of the jury.

Perhaps even more importantly, the Lynch case is confirmation for us lawyers of what we suspect happens behind the closed doors of the jury room and it heightens the concern that we may not be able to overcome deep seated biases through good advocacy.  Clients who decide that they “just want their day in court” may take heed here as well.  After all, would you really want to have a jury hear your case if you knew that they secretly hated you or your lawyers?  There is no easy answer to the dilemma other than this: make sure that you are represented to competent, zealous counsel who will use their skills and tools by the best of their abilities to discover these deep seated biases before they rise up to kill your case.

Eric Bland and Ronnie Richter.