Every member has a story. This section began in the early days of The Resource and we are looking for writers to help us tell our members stories. Please contact Lynette Pitt to volunteer to help write a member profile.
What It Means to Be a Defense Lawyer – Tricia Shields
Last fall, Allen Smith asked a number of us to write a column about what it means to be a defense attorney for The Resource. When I sat down to write my contribution, I reread the previous submissions of my friends. Some of their pieces recounted fond memories, some told funny war stories, and all were full of the wisdom of great lawyers. I have deep respect and affection for each of the authors, and it was joy to read what they shared with us. I am happy to have this chance to add my perspective.
Having done this for a lot of years, I now see the role is a defense attorney as similar to the role of a good parent. Our job is to advise and guide, to listen and to care. While our clients’ fights aren’t our fights, they often feel like they are. We speak for them, fight for them and protect them as best we can. We have the responsibility to tell them the truth, especially when it’s a hard truth, and they don’t want to hear it. And we sometimes stand with them in the most difficult times of their lives.
Early in my career, of course, I usually handled smaller matters representing folks who considered their case to be the insurance company’s problem, and me an annoyance. I learned the value of patience and persistence in those cases. (“Yes sir, you really do have to help me answer these nosey interrogatories.”) I was also lucky enough spent several years as second or third chair, junior to the best trial lawyer that I know and sometimes to a more experienced paralegal, in more significant and complex cases. I figured out early on what an incredible opportunity I had been granted, and I tried to learn everything I could from it.
Those first experiences prepared me, as they do all of us, for the greater responsibilities to come. It has been my honor to represent people in all kinds of circumstances – some who were innocent of the allegations against them, and some who had made terrible mistakes with terrible consequences. Some are terrified, worried, or ashamed. Being a defense lawyer means giving all of your clients, regardless of what they have done, guidance, compassion, and the best defense you are able to provide.
Being a defense lawyer means working very hard. I have come to accept that our work week will never be forty hours, and that everything always takes longer than I think it should. I have also come to learn that even though working on weekends is a special kind of misery, time spent in preparation is never a waste.
In fighting for my clients, I have found that it is rarely necessary to fight with the lawyer on the other side, and it is never necessary to be unkind. That does not mean, of course, that we let anyone push us around or take advantage of us. We can be firm in our position, without, as my grandmother used to be say, “acting ugly.” One of the best things about practicing in a community like ours, where people are friendly and have good manners, is that we can be friends with our opponents.
Here in North Carolina, being a defense lawyer also means that we are friends with our colleagues in other firms, who do the same kind of work that we do. I hear that in some parts of the country, defense lawyers consider each other to be competitors for clients. Here, however, thanks to the culture of the NCADA, we are members of a supportive community. This is where I learned how to take expert depositions, how to pick a jury, and about all about the new decisions of our appellate courts. This is where I was given an opportunity to lead, and where I’ve had unbelievable support as I’ve pursued my dreams. This is where I made some of my closest friends. This is where I found my law firm home.
When I joined a defense firm 34 years ago, I had no way of knowing where it would lead. I am grateful for this journey, and all the friends that I have made along the way.
by David N. Allen
When President Smith asked several folks to write a column about what it means to be a trial lawyer, I thought why do any of us need to do this? After all, no one has ever done a better job of summing up this topic than Sammy Thompson in his valedictory address at Hilton Head a couple of years ago. It has never been any fun to follow Sammy. And the times I have had to do so, I have repeated the old comment attributed to John Warner, talking about his wedding night with the oft-married Elizabeth Taylor: “I know what I am supposed to do, I just don’t know how to make it seem new and interesting.”
To me the real core of being a trial lawyer is persuading people. Everything that we do is about convincing somebody-judges, jurors, clients, opponents-to do what we want them to do. One of my great mentors, Hank Hankins, said that trial work was bending others to your will, and that’s accurate. We package arguments, present precedents, position facts, and use all of our powers to persuade others and to convince them to adopt our positions. Any skill I have in achieving that end has been shaped by the lawyers I have been blessed to interact with over my career. Those lawyers fall into a number of categories that I believe should resonate with all practicing attorneys.
First, I have to acknowledge my Mentors. When I first came to the bar, I was lucky to work with some really good lawyers. My two principal mentors at the Golding Crews firm were Marvin Gray and John Golding. I have often said that Marvin taught me how to be a lawyer/professional and John taught me how to be a lawyer/trial advocate.
Marvin Gray was an excellent lawyer. He also treated everyone with great respect and courtesy. Whenever he called another lawyer, Marvin invariably asked “Is Mr. Hewson in? MK Gray calling.” He gave the honorific to the person he was calling, while referring to himself as merely MK Gray. Marvin saw value in training young lawyers not only in the law, but also how to act with other lawyers. On most Friday afternoons, the associates would congregate in Marvin’s office where he would pull a bottle of Virginia Gentlemen out of his bottom desk drawer and we would then reminisce about the week or discuss an opinion that had just come out. Marvin read the advance sheets, and this was when they were really “sheets”. Marvin kept an annotated black notebook that he carried with him to court and later when he went on the bench.
John Golding was cut from different cloth. John was as skilled an advocate in the courtroom as I have ever seen. John’s specialty was defending physicians, and he understood the medicine and how to present it to folks in an understandable and digestible way. John never talked down to the jury, but it was always clear that Professor Golding was teaching them what they needed to know to unravel the mysteries of medicine. John did not suffer fools easily. Luckily for me, those fools were generally found across the “V.” as plaintiffs’ lawyers, plaintiffs themselves, or plaintiffs’ experts, although occasionally John leveled his disappointment at those who worked with him. It didn’t take too many times of being shown your inadequacies by John to anticipate and shore up any weaknesses in your case. John also was an accomplished actor in the courtroom, bearing himself with presence and brimming with confidence. I learned from him that great art of appearing to be completely in control and absolutely convinced that you had the winning argument, even if you had a few doubts lingering down deep. At least I had those doubts - I am not convinced that John ever doubted!
I was later blessed to have Hank Hankins as my mentor. Hank had that rare gift of insight into legal problems and the ability to hone in on the key issue that would determine the outcome of the case. And he was able to brilliantly marshal arguments and logic to ultimately prevail on that central point. A walk down the hall to discuss a problem with Hank always yielded a new line of attack or reassurance that you were on the right track.
Having been equipped with at least rudimentary skills by these excellent mentors, I then benefited from my interaction with the Triers. I have been fortunate to try cases and work with some truly remarkable trial lawyers. I am reluctant to start listing the folks in this category for fear of leaving out a few, but the list has to include these friends: the late Jim “Butch” Williams from Greensboro, with whom I tried my longest case; Gary Parsons; Dan McLamb; the late Harvey Cosper; Jimmy Williams; and Jim Cooney. This is a truly remarkable cast of trial lawyers and I have to admit that I stole a little (or perhaps a lot) from each one of them. It was an honor to watch them work and to see how their approaches to trial work were so interwoven with their personalities and natural strengths. What was appropriate for one might not have worked for the other. These lawyers knew themselves and knew the value of being true to themselves in each presentation to the court and jury.
I have also benefitted and learned from the remarkable Judges before whom I have appeared. My list must begin with the late Erwin Spainhour, whom I knew both as a trial lawyer and as a judge. I have lots of stories from practicing in front of such Titans as Frank Snepp, Bob Kirby, Tom Seay, Walter Allen, Bob Lewis, Jud Downs, Forrest Ferrell, and more recently before David Lee, Bob Ervin, Don Bridges, Louis Bledsoe, Jim Gale, and Mike Robinson. This is an eclectic group and shows the need for lawyers to adjust to meet the differing needs and requirements of different judges. What works to convince one judge may not work as well to convince another. We have to know a judge’s predilections and tailor our presentations to fit with the judge in a particular case.
I would be remiss if I didn’t mention that I have also learned a lot through the years from the many plaintiffs’ lawyers with whom I have had to deal. I won’t list those names and feed their considerable egos, but you can learn from them, particularly from the rhythms and demands of their personalities. Similarly, the great mediators with whom I have interacted over the years have also taught me a lot. Two stand out to me as instructive. Bonnie Weyher has a gift of connecting with plaintiffs. She is empathetic, which immediately resonates with folks who think they have been injured or wronged and so, they listen to her. Tapping into some of that in my interaction has made me better at the art of prevailing at mediation. Similarly, Ray Owens has remarkable talent as a mediator, blending a cajoling nature with a wealth of experience and insight into the personalities and motivation of claimants and defendants and their lawyers to help the parties move toward settlement. The ability to read people and tailor arguments helps mediators and can also help us better represent our clients at mediation.
Finally, I am quick to admit that I believe I have enjoyed a successful career as a trial lawyer due to a willingness to surround myself with lawyers who are a lot smarter and more talented than I. These are the Youngsters. One of my first associates was John Grupp. Despite a questionable background of Duke undergrad and UVA Law, John was remarkably easy to work with. Our personalities worked well together, and John’s organized way of thinking brought some order to the chaos I occasionally demonstrate. Lori Keeton, a very gifted writer, and Jason Benton, a talented trial lawyer with a superb outlook on life, helped me immensely. As did Chip Holmes, after I managed to convince him to come to my aid in a time of need and join our firm. Currently, I continue to benefit enormously from the work of my partner, Ben Chesson, a true craftsman as a writer with a keen mind and a prodigious work ethic. Blessed with real talent, Ben has made it very easy for me to enjoy some success over the last several years. And he has helped make the last few years much more interesting as together we have moved into new fields of practice and picked up new areas of the law to study and learn.
I tell young lawyers that they should watch really talented lawyers and learn from them. When I was a young associate, we were fortunate that clients were willing to pay for young lawyers to go to trial and soak up the experience, knowledge and techniques of more senior lawyers. Now, even if you can’t bill for that, take advantage of the opportunity. But don’t try to be the lawyers you watch. Try to see what works for them and consider how something similar might work for you. I’ll never have the coldly logical approach of Hank Hankins or the elegance of Butch Williams. I won’t have the self-effacing nature of Harvey Cosper or the quick wit of Sammy Thompson. And fortunately, I will not have the pugnacity of Gary Parsons! But absorb little bits of all the trial lawyers you see and use that to your advantage. That is the real gift, the real secret to being a good trial lawyer.
David N. Allen is a past president of NCADA and 2020 Recipient of the Excellence in Trial Advocacy Award.
by Dan J. McLamb
When you can count on one hand the number of years left before you become a 50-year lawyer, there is a lot to contemplate about what it means to be a defense lawyer. My first impulse was to romanticize the entire experience. Then I thought, well, it actually has been pretty hard work. So for a more honest accounting, I tried to go back through what I have done over the years.
Right out of law school I knew that I wanted to be in the courtroom, but it took me a while to realize that there were actually only a few ways to get there on a frequent basis - be a prosecutor, a public defender, or in a civil practice world, an insurance defense lawyer. As a result of good fortune as much as anything else, I landed at a defense firm led by a group of incredibly talented lawyers who, most importantly, practiced law at the highest level while never compromising ethical and professional standards. Like so many others, I benefit to this day from having crossed paths with so many outstanding defense lawyers who were committed to teaching young lawyers like me, by example and words, the “right way to practice law.” All of us who have been fortunate enough to thrive as defense lawyers shoulder the burden of mentoring those who will take our place by what we say and do. It is essential for the continued success of our specialty.
In preparing to write this article, I looked back through old notes I have saved over the years in search for what I actually have said about what it means, or requires, to be a defense lawyer. I stumbled across some notes I jotted down in July 2009 to lead a discussion at our firm retreat entitled “Ten Things to Remember.” While there is nothing earthshaking about these notes, they do capture many of my thoughts about important components of a successful defense practice. They begin, however, with reference to an invaluable lesson I learned from my very first trial sometime in the late 1970’s. Here are the bullet points
Judge Braswell’s lesson.
Judge Braswell was a respected Superior Court Judge from Cumberland County. He presided over my first jury trial. I struggled mightily to ask non-leading questions throughout the trial. At its conclusion, Judge Braswell asked me to approach the bench. After all these years, I can still quote him, word for word: “Son, I noticed you had a little trouble with leading questions. The next time you get ready for trial, put together questions for direct examinations that all begin with the words who, what, when, where, or why. If you do that, you will never ask a leading question.” I have followed that advice for every trial for more than 40 years and have passed it along to dozens of young lawyers.
Never hedge the truth.
This note needs no explanation. As defense lawyers, we are frequently in court and see the same judges repeatedly. Judges talk to each other. Credibility is built one block at a time. In my view, credibility with the court and opposing counsel over the long-term means everything. One misrepresentation – even a small one – can tear down the blocks you have built and damage your credibility forever. There is no case or issue worth putting you or your firm’s credibility at risk.
There is no substitution for preparation.
This point should not surprise anyone. Some of us like to think we are good communicators and really effective with juries. The reality is that we begin the trial by having to defend a position. No matter how good we are on our feet, our clients prevail because we are driven to out-work the other team.
Write succinctly.Judges and lawyers are busy. The more directly and succinctly we convey our thoughts, the more clearly they are understood.
Respect your clients.
Leslie Packer discussed this point in her article. Different clients have different goals. Our job is to understand these goals and, as long as they are ethical and legal, endeavor to achieve them. Successful practice as a defense lawyer really is pretty simple. It means understanding our client’s objectives; making a plan to accomplish those objectives; keeping the client advised of the plan; and following through with the plan. It is certainly our job to advocate what we believe is in the client’s best interest, but we do not get to make the final decision.
Disparaging competition seldom works – Praise is better.We are fortunate to be defense lawyers in North Carolina. I have never practiced in another state, but I have to believe the teamwork and comradery among the North Carolina defense bar is unparalleled. Criticism of another team member rarely benefits the team as a whole, and it should be avoided.
The Harry Weyher system.Harry Weyher was my father-in-law. He practiced law in New York. Before computers, he maintained a rolodex on his desk in which he kept detailed personal notes about all his clients and colleagues - their birthdays, interests, children’s names, etc. I have never perfected his system, but I have tried. Clients are more than bill-payers. They have families and concerns just like us. I have always believed that professional relationships are strengthened when personal relationships are strong and sincere.
Remember it is a team.Most of us are pretty good at recognizing and thanking our mentors. For those of us lucky enough to be lead trial lawyers, however, it is equally important that we recognize the younger lawyers, paralegals, and administrative assistants who surround and support us. The truth of the matter for me, and I suspect I am not alone, is that I would be lost at sea without the capable, long-time support of those with whom I am fortunate enough to work. I think we as defense lawyers recognize the value of our teams.
Do not put your head on the pillow without responding to every call and email.Our partner, Joe Yates, beat this drum daily. It’s a hard one, but he was right. If you want to be a successful defense lawyer, you cannot take any question or client for granted.
Keep the North Carolina State Bar on speed dial.For those of us who handle defense work for insurance carriers, the tripartite relationship is always the elephant in the room. Representing the insured and insurer is easy - until it is not! Conflicts are inevitable. We obviously have the North Carolina Rules of Professional Conduct and many State Bar ethics opinions for guidance, but I (particularly as I have gotten older) seem to confront ethical issues which are more gray than black and white. For years Alice Mine at the State Bar fielded my calls. Now it is Brian Oten (919-260-2650). To be the best defense lawyers we can be, we have to be certain we are ethically representing the interests of both our insured and insurer clients. The State Bar is there to help steer us safely to port. It has guided me more times than I can count.
I could list a hundred additional points that help define what it means and requires to be a successful defense lawyer. The important thing, however, is to be cognizant of fundamental principles that have served the profession well over the long-term and to work together to preserve and enhance the quality of our defense bar.
Dan J. McLamb is the 2019 Recipient of the Excellence in Trial Advocacy Award.
by the Honorable Linda Stephens
Twenty years ago, I became the first female president of the North Carolina Association of Defense Attorneys. Serving as president of this organization has been one of the crowning accomplishments and highest honors of my professional life. Getting there was a challenging, but also rewarding, journey. Then and now, I have found it fitting that I became the first female president in 2001, because, for so many years, the notion of a woman leading a group of civil defense lawyers was as alien an idea as the tale told by Arthur Clarke in 2001: A Space Odyssey.
I was in law school at the University of North Carolina at Chapel Hill from 1976 until I graduated in May 1979. Women made up less than 20% of my class, and some male classmates believed, and sometimes outright expressed, that we were “tokens” taking up the space that should have been given to another of their kind. I wouldn’t call the environment hostile, but it definitely was not welcoming. In those days, few women went into careers as litigators. Most went into government service, still a noble calling. I became a law clerk at the Court of Appeals for a year and then served as a deputy commissioner for the Industrial Commission for four years. But, I wanted to try cases. I did not want to spend my career watching other lawyers, mostly white men, try cases. I got lucky. In August 1984, I left the Industrial Commission to go to work as the first female lawyer at Teague Campbell Dennis and Gorham in Raleigh.
Early on, I was required to apply for membership in the NCADA. I did. Not long after, I received my Certificate of Membership recognizing “him” as a “member in good standing.” I promptly sent the certificate back, telling then Executive Director Annette Boutwell that I was not a “him” and that I was sure she had inadvertently pulled my certificate out of the wrong stack. At that time, I had become the third female member of the Association, behind Beth Fleishman and Sheila Fellerath. Talk about trailblazers! Anyway, Annette let me know that it was not a mistake. The Association did not have any membership certificates for women. But, she was ordering some!
I continued to call out the white male members of the Association. My firm always supported the annual meeting, and I attended my first one in 1985, when it was held at Hilton Head in April. The weather was unpredictable, frequently cold and rainy. But there we were. The CLE was as exceptional as it has always been. Back then, though, the speakers were all white men, who addressed the audience as “Gentlemen.” Troublemaker me, I raised my hand to say, “I’m not a gentleman!” And then I went up afterward to tell the particular speaker the same thing.
I railed against the fact that there were never any women speaking at the podium! Careful what you ask for. I think it was 1994, could be wrong about the date, I became the first female speaker at the annual meeting. My place on the program? Last on Saturday. But, it was a significant start.
I do not remember who asked me to be on the Board, but I gladly accepted, served my three years, and went away. Then, the call came. New president Jim Cooney wanted me to be secretary. I have never been fond of taking the minutes, but I jumped at the chance to be an officer of this Association. First woman officer. Pressure on. Did it. And I will forever be grateful to Cooney for recognizing and rewarding my fight for the women in this Association. I rose through “the ranks” after that to eventually become President.
Leslie Packer became the second female president of this Association. I was happier and prouder at her induction than my own. Then, Bonnie Refinski-Knight, followed by Tricia Shields, the first time the Association benefitted from two women in a row! And then the first African-American woman, Day Matthews! And, coming up next, Sara Lincoln!
I love Sara as if she were my daughter. I am so happy that she is going to be leading the NCADA for the next year. She will advance the cause and progress for women in the profession and, specifically, as civil defense lawyers. Can’t wait to celebrate with her!
Hon. Linda Stephens is a past president and is the 2015 Recipient of the J. Robert Elster Award for Professional Excellence.
by John S. Willardson
The date was May 17, 2007. The place was Centenary United Methodist Church in Winston-Salem. The occasion was the memorial service for Bob Elster, a beloved charter member of the NCADA. I was there along with Lynette Pitt and Richard Bennett to pay our respects. Former Chief Justice Jim Exum was seated to our left on the same pew. During the opening prayer, a cell phone sounded nearby. The ringtone was Stars and Stripes Forever. Heads turned and a person seated nearby began squirming as any of us might do in such an embarrassing situation. Following the service, that person told me, “I didn’t know whether to stand up and salute or crawl under the pew in front of me.” It would probably be unfair and unprofessional for me to mention the name of that person, but his initials were RVB and he lives and practices law in Winston Salem. I am sure that our friend, Bob Elster smiled when that occurred.
When I was asked by Lynette Pitt to write an article about professionalism and trial practice from the perspective of a small firm, small town lawyer, my initial inclination was to decline because I doubted it would be of interest to current members of the NCADA. However, I have decided to proceed with an article which I hope you will find helpful or at least interesting. A characteristic of senior lawyers is to share war stories and this short article will tell a few.
Following graduation from UNC Law School in 1972, I served as Research Assistant to the late R. A. Hedrick at the North Carolina Court of Appeals. I had no idea where I would go to practice law following that clerkship. A few months into that clerkship, then Governor Robert Scott appointed Julius A. Rousseau, Jr. of North Wilkesboro as a Superior Court Judge. Judge Hedrick encouraged me to interview with the firm. Neither my wife Ann nor I had ever been to Wilkes County and had no connections there. I went for an interview and was offered a position as an associate to begin in August 1973, when my clerkship ended.
WAR STORY NO. 1
AUGUST 1973 – BAPTISM BY FIRE
I was hired as an associate of the late Larry S. Moore, a wonderful trial lawyer and great southern gentleman. He was genteel, polite, and loved by everyone. On my first day in the office, he told me that there was a criminal term of Wilkes Superior Court, that we would simply go to the courthouse that day so that I could observe motion hearings and a trial and meet other lawyers and members of the Clerk of Court’s staff. He did not tell me that Judge Rousseau would be the presiding judge. Although I had heard many oral arguments in the NC Court of Appeals, I had never actually been in a trial courtroom.
After entering and being seated in the courtroom, Judge Rousseau, in a fairly gruff voice, directed Mr. Moore to approach the bench. Although I was seated 15 feet away, I heard him ask Mr. Moore, “Do you want John to get his feet wet?” Mr. Moore said “yes,” and I was appointed that day to represent an unfortunate individual charged with a second or third offense DWI. Judge Rousseau directed the Clerk to “put twelve jurors in the box.” Mr. Moore left the court room, and I was on my own to select the jury and try my first case. I had no advance warning that any of this was going to happen.
Somehow, I bumbled through, and late that afternoon, returned to the office in North Wilkesboro. I was upset with Mr. Moore for having abandoned me. It was late in the afternoon and Mr. Moore was seated at his desk with a glass of bourbon and a big smile on his face. He asked me about the trial, and it was all that I could do to contain myself and avoid saying something harsh. Perhaps it was nascent professionalism that kept me from doing so. But more likely, it was the need for a job and income. We discussed details of the case including the fact that the jury had deliberated for 45 minutes without reaching a verdict before court was recessed for the day. Mr. Moore said, “You must have done something right, you have confused the jury.”
The confusion did not last long because the next morning the jury returned and convicted the unfortunate client. As a footnote, my client had a homemade tattoo on his forearm that said, “Born to Lose.” Fast forward about 35 years later and the same gentleman came to see me about a disability case and told me that he had been working as a security guard.
WAR STORY NO. 2
THE COW CASE
Approximately three weeks later, Mr. Moore handed me a file and told me that the case was on the District Court Civil Jury calendar for trial the next day and that he wanted me to handle it. It was my first insurance defense case. I protested that I knew nothing about the case and could not possibly be prepared. He replied, “This is a cow case. No one has ever lost one of those.” He was wrong. I lost the case. For those of you who do not know, a “cow case” is a case in which a farmer is sued for negligently maintaining fences; a cow escapes from the pasture, wanders into the road and is struck by a passing vehicle, sometimes resulting in a lawsuit).
WAR STORY NO. 3
MOONSHINERS and CRIMINAL LAW
At that time, there were 13 ATF agents in Wilkes County because of the widespread moonshining in this area. In addition to our civil practice, we handled a wide variety of criminal cases ranging from many “liquor” cases, drug cases, assaults, and even murder. In a small-town general law practice, we did a bit of almost everything. After approximately 20 years, I discontinued any serious criminal court work to concentrate in the development and handling of a growing insurance defense practice. Eventually our firm grew to five lawyers, but I now practice alone.
During the following 48 years, hopefully my trial skills improved a bit. If so, it is because I have learned from each trial experience and have benefited greatly from my 40+ year association with the NCADA and DRI.
What have I learned about professionalism from a small-town practice? I have learned that it is important (1) to remain calm in the face of unexpected developments or adverse rulings; (2) to pace the cadence and tone of your speech; (3) to dress professionally and appropriately; (4) to be yourself; (5) to carefully draft and proofread documents; (6) to be polite and respectful of judges, opposing counsel, jurors, witnesses, and courtroom staff; (7) to be prepared; (8) to be honest (9) to be fair; (10) to be humble, not arrogant; (11) to avoid “sharp” practices and (12) to treat everyone with the same degree of respect and fairness with which you would want to be treated.
The NCADA is comprised of many great lawyers who embody those basic principles in both their lives and practices. Bob Elster would be proud of this association and its members. Undoubtedly, you, too, have helped keep that smile on his face.
John S. Willardson is a past president and 2016 Recipient of the J. Robert Elster Award for Professional Excellence.
By Leslie Packer--Ellis and Winters, LLP
There are two facts about being a defense attorney that structure much of what we do. Beginning with the obvious – a defense attorney is asked to defend a defendant who has been accused of wrongdoing of some sort. Second, a defense attorney is reacting to allegations that someone else has formulated. Both of these facts are fundamental to our mission.
With respect to the first fact, our clients are not willing participants in litigation and have not initiated it. Our job, therefore, is to represent them and guide them through a process that is often scary, unpleasant, and perhaps confusing. We do not get to make the facts – we have to make of them the best we can, and help our clients reach the best possible outcome in what is often a difficult situation.
So, we begin with a client who is not happy. One of our critical responsibilities is to learn about the client, who may be an individual or a corporation. When it is a corporation, it is still made up of people, so we learn who they are, what their roles are, and who the decision-makers are. Even if the people we are helping are employees of a corporate defendant, they still have concerns. For both individual and corporate clients, a surprising number of those concerns are non-monetary. Clients are concerned about the effect of an adverse outcome on their jobs, reputations and families. Sometimes the client’s biggest concern may be about something that is peripheral to the litigation, but extremely important to the client. For example, the client may have been going through counseling related to the incident in question and is uncomfortable disclosing that fact. It is our responsibility, early in the life of the case, to explore these concerns, both to provide reassurance and also to be prepared to guard against undesired outcomes.
We need to explore the client’s desired outcome. We then build our defense to reach that outcome – whether a settlement, summary judgment, or a defense verdict. Although it may be tougher on the ego, sometimes the best outcome is to obtain a reasonable plaintiff’s verdict. When there is clear liability but a plaintiff has unreasonable settlement demands, a verdict that is lower than the last demand may be a “win” for the client. In the mass tort setting, a low plaintiff’s verdict may help in establishing norms for settlements on a large scale, and thus may be very valuable to a client.
As we begin to develop our defense, we learn about the case. Often there are documents – some good, and almost always some bad. We interview witnesses and engage in discovery. As we learn more, the defense strategy may change. Apparent weaknesses may turn into strengths, and vice versa. It is our job to communicate with the client about the evolution of the case and corresponding defense strategy, and to assess whether the desired outcome remains achievable.
To be effective in representing our clients and reaching their desired outcomes, we must be trusted advisors to our clients, but also respected ambassadors to others. We are ambassadors to opposing counsel, to mediators, to judges, to court personnel and to jurors who may ultimately decide the client’s dispute. Because we are ambassadors for our clients, our conduct reflects upon them. Also, our conduct builds our individual reputations. Our reputations will determine our ability to be effective advocates in future cases.
A defense attorney who is always true to her word, is respectful to opposing counsel, and is appropriately zealous in her reputation, but deferential to the tribunal, will be an effective advocate and ambassador for her client. It can be tempting to take the bait when opposing counsel is disrespectful, bullying or abusive, but ultimately it is not effective or helpful to achieving the ultimate objective – the client’s desired outcome.
Unduly aggressive behavior can be a tactic, especially in depositions. Rarely do we see such conduct from our fellow members of the North Carolina bar, but sometimes we see it from out-of-state counsel. Unfortunately, this type of bullying is more often directed at younger attorneys. In a recent deposition, plaintiff’s counsel started mimicking the speech of a younger defense attorney using a baby voice. The same attorney stated that an objection was “clearly made by someone who has never tried a case.” I have found that ignoring this type of behavior is often the best response, but occasionally it is necessary to engage, in a professional manner, to communicate that bullying will not work – to stand up to the bully. This is especially true when the bullying is directed at the client or witness, who needs to feel protected. Most often, however, ignoring the bully works best.
There are some defense attorneys who treat every case as if it is an outrage, and all plaintiffs’ counsel as the enemy. I have not found that approach to be effective. There are cases that are truly tragic to all involved, and plaintiffs who deserve to be treated with compassion. Given that the majority of cases settle, developing a professional working relationship with plaintiffs’ counsel is likely to be helpful to our clients. I received a great piece of advice from the General Counsel of a medical device company. He said that when he was a practicing defense lawyer, if he had a new case with an opposing counsel he did not know well, his first action was to invite opposing counsel to lunch, not to talk about the case, but to get to know each other. I have employed that practice myself, and found that it leads to a respectful, professional relationship that benefits the client whether the case settles or goes to trial.
The second fundamental fact about being a defense attorney is that we usually are responding to allegations rather than formulating them. We begin our representation in a reactive state, responding to allegations and theories that a plaintiff may have spent months or even years formulating. We are playing catch-up from the beginning, as we learn the case and begin formulating our defenses.
The plaintiff’s theory may change and evolve as the record is developed. A skilled plaintiff’s counsel will abandon claims or theories that are not well-supported by the record, and will develop new theories that may not have been apparent early in the case. I have seen the entire theory of the case change completely as late as opening statement at trial. When that happens, it is difficult to discard witnesses, theories, nice-looking demonstratives and the like on a few moments notice, but that is what we must do. As the plaintiff’s attack changes and becomes more focused and streamlined, so must the defense, as it must meet the attack squarely. We become so invested in our cases that this streamlining process is much harder to do than it seems. Having anticipated every possible angle of attack, it is hard to maintain the discipline to focus only on what is actually presented. Introducing any unnecessary fact, witness, or evidence creates risk of distraction or worse – harming the client’s case.
Even more challenging than streamlining is to anticipate and be proactive throughout the life of the case. We must look for opportunities to take control where possible. Seeking control may be as simple as taking control of the calendar and the discovery scheduling order. It also extends to developing the narrative, however. It is safest to have our clients prepared to volunteer nothing, and reveal as little as possible. At the time of trial, however, we must have a compelling story to tell. If we are merely reacting to plaintiff’s development of the evidence throughout the life of the case, we are not developing a story to tell the jury that will paint our client in a favorable light. There is a delicate balance between making the plaintiff, who has the burden of proof, prove his case, but giving the factfinder some reason to like and understand the defendant.
Having enjoyed the privilege of practicing as a defense attorney in North Carolina for almost 35 years, I have learned everything I know from my partners and colleagues, from counsel for co-defendants, and from many able plaintiffs’ counsel. Small courtesies along the way have meant a great deal. I remember very senior lawyers from my own firm and from other firms, helping me out when I was a young lawyer – driving to remote depositions, conferring regarding strategy, and some off-the-record praise and encouragement from opposing counsel. What it means to me to be a defense counsel today is to pay it back to the best of my ability. I hope to extend a helping hand to younger attorneys so they can learn the tricks of the trade, but more importantly, come to enjoy the spirit of collegiality and professionalism that makes one a truly effective defense attorney.
Leslie Packer is a past president and 2017 Recipient of the J. Robert Elster Award for Professional Excellence.
By Ken Kyre
As I approach my 70th year on this earth, I count myself the recipient of good fortune to have been a defense attorney for over four decades. I did not begin my journey on the law path with the expectation of being on the right side of the v. Way back in the 1970s, my friends would have sworn I would end up laboring in the fields of plaintiff’s litigation. (After all, I voted for McGovern for President; me and 127 other people.) However, life has a way of altering paths, and I ended up working for a full-service law firm which had an insurance-defense practice (where my billable rate was the princely amount of $25 an hour – but there was no third-party auditing). Because I wanted to be a trial lawyer, I was able to become steeped in insurance defense. Some older attorneys reminisce that the 1970s was a golden age of an insurance-defense practice. I don’t know how much gold there was (I didn’t see any), but it was a grand time. The business side of a law firm was scarcely a concern, and I and my fellow litigators focused on the pure practice of law, trying more cases in six months than young attorneys nowadays do in five years.
Back in my early days as an attorney, I did not view myself as one who was protecting “the Man,” callously preventing injured plaintiffs from receiving just compensation. Rather, I felt that I was helping and protecting insureds who were real-life people who were confused and concerned about being sued, and defending companies who usually had never been sued before and likely would not be sued again, which were filled with good and earnest employees trying to do their jobs. I have found this to be true throughout my career.
I see being a defense attorney as adding balance to what can be an unbalanced arena, since often we enter it having to confront a sympathetic plaintiff. We have the responsibility, and the privilege, to tell the whole story (especially in today’s world of so-called “reptile” strategies). I have found I have not needed to leave my humanity to defend defendants, and that humanity helps me understand the plaintiff’s perspective and to appreciate what my defense clients are experiencing.
Although throughout my career I have often been involved in “big cases,” I have also defended cases which had only a small amount at risk, and the feeling of satisfaction in helping clients in both kinds of cases, and all in between, reminds me that I play a worthy and necessary part in the litigation world.
Being a defense attorney has also provided me the opportunity for my mind to usually be challenged and stimulated. And in representing defendants and litigating lawsuits, I have found myself being a detective, a private investigator, a psychologist, a sociologist, a therapist, an explorer, an academic, an actor (with the courtroom the stage), and much more. This has not been a boring career.
A happy benefit of being a defense attorney in North Carolina has been working with such a huge group of outstanding defense attorneys, who not only are great at their work as trial lawyers, but who are exceptional human beings.
The way defense attorneys practice their craft has changed over the years; no longer do I wander through libraries with actual bound volumes, flipping through pages of a case reporter, feeling the paper between my fingers. (My fingers now spend their day walking over a keyboard.) And I don’t miss looking for a phone booth driving down the road to a deposition or courtroom (thank you, cell phone). The technological advances have been staggering, and it has allowed defense counsel to be more informed, undertake better legal research, to be more accessible to fellow attorneys and to clients, and to be more productive. But some basic aspects of being a defense attorney have not changed: Dedication to the client, seeking to help that client, a desire to be more than just competent, being civil to and respectful of all attorneys, litigants, and others, being vigilant, being creative, and being ethical and honest.
I have been so fortunate to have been a defense attorney for so long, and I’m glad that it hasn’t gotten old, or boring, or tiresome. I believe I, and all defense counsel, serve an important role in our society and the legal system, and we aid in the never-ending search for justice. That is something we all can be proud of.
I end with this wish: May you never lose passion for the law, or for life.
Ken Kyre, Jr. is a past president and 2018 Recipient of the J. Robert Elster Award for Professional Excellence.
By G. Gray Wilson
Several years ago I wrote an article for the State Bar Journal entitled, “A Jury of Psychopaths.” Not everything I write gets published, and this was one of them. I recall that at least one editorial pundit questioned the statistical validity of the concept of rogue juries, while after four decades and hundreds of jury trials, I just assumed that everyone knew that juries are generally crazy. That did not mean that they never reached the correct result in a case (meaning I won), but only that on occasion the wheels came off and someone unfairly, unjustly got clobbered (i.e., I lost). Holding these truths to be self-evident, as I do, then why would anyone ever take up the banner and march off to war in a courthouse packed with madmen and fools?
I think the answer is, because many times we not only see those unjustly accused of wrongdoing, but accusers whose motives and claims are less than honorable, fomented primarily by that lust for the Spanish peso ($). I recall the plaintiff many years ago who filed a pro se lawsuit claiming that a physician had ripped out her tongue, which made a ghastly impression on me until she showed up in court on a threshold motion and gave me and the court a tongue-lashing quelled only by a summary dismissal. Or the young woman (and this one actually had a lawyer representing her) who sued her doctor over unsatisfactory cosmetic surgery which her complaint flatly stated had left her “ugly” and misshaped (conjuring up “The Swarm” alternative rock band from Down Under). So it came as a surprise when we scheduled her deposition and Venus Aphrodite walked into the conference room to be examined. That one also bit the dust.
But then there were the occasions when a plaintiff filed suit and I determined objectively that not only had the defendant been negligent to a fault, but that the injuries in the case were also horrific. That objectivity often placed me at odds with the client, more often with the carrier (and cost me one or two in my humdrum career, not to mention a few verdicts), yet what bothered me more was that opposing counsel seemed not to share my genuine anguish but rather regarded the client as a meal ticket, nothing more.
I carried this proclivity to view all such legal conflicts from a Manichaean perspective into the minority of cases where I represented plaintiffs, but over time found that I could keep my head screwed on straight by taking the side of the defense, functioning more as solon than fanatic. This may explain why, during the first half of my legal career, most of my trials occurred because I either refused to settle out of spite or simply lacked the skill to realize that I ought to do so for the benefit of the client. Once I figured this out, I suddenly realized that nearly every time thereafter that I was trying a case, it was because I was forced to do so by an unreasonable opponent or a myopic party, on one side or the other.
Admittedly, there is a tactical advantage to sitting on the defense side of a case. In the military, I learned even as a reluctant guest that the defense has a three-to-one margin over the attacking horde, for a number of reasons, ranging from concentration of force, fields of fire, higher ground, fortresses, etc. The same holds in litigation, for different reasons. A plaintiff has the burden of proof, the defense is usually better financed (you will not see many lawyers defend a case on a contingency fee = pro bono), and the rules of procedure and evidence provide a number of strategic barriers to recovery. And call me crazy, but juries in this state are still generally conservative (this does hold in a number of counties) for the most part. But none of that has stemmed the tide of lawsuits or reduced the number of outlandish claims in our society that many like to regard as progressive.
No one can deny that we live in a litigious society, where every perceived wrong (e.g., the tryout who did not make the cheerleading squad in high school, or the politician offended by the opponent who called him a “halibut”) is arguably fodder for a lawsuit. Then there are also those suits asserting claims that are either outright false, fraudulent or advanced for an unethical purpose. Political and other agendas are not the province of the courts, which is why we have those other two branches of government that are even more flawed than the judicial apparatus. But when frivolous claims proliferate, genuine grievances can get lost in the shuffle, making judges jaded about everything that appears on the Monday morning docket or hesitant to boot any suit, no matter how baseless. The main casualty is justice. A responsible defense bar can assist the courts, mediators, parties, carriers and sometimes even opposing counsel with the daunting challenge of fairly and objectively evaluating claims, on the allegations and the evidence, so that this highly imperfect system works better than whatever Premier Xi or President Assad has to offer. If all else fails, then the worst of all these options is attempting to persuade a jury of questionable talent and virtue where the truth lies.
Mind you, I will jump at a good plaintiff’s business dispute or personal injury case at every opportunity, but as with the defense of every lawsuit, it is not about the sound and fury, which really do signify nothing, but what really happened. The judicial system is so structured as to impress all litigators into the role of being poor players who fret and strut their hour upon the stage and then are heard no more (apologies to Shakespeare), yet it more closely resembles reality TV, not Perry Mason, in the final analysis. So while the adversary system by necessary design becomes part of the problem, defense lawyers can be part of the solution, guiding every dispute along the road, if not to redemption, to a fair resolution for all concerned. And when that cannot happen, lock-and-load, it’s off to war.
Gray Wilson is the 2019 Recipient of the J. Robert Elster Award for Professional Excellence.
In Memoriam: J. Donald Cowan, Jr.
It is with great sadness to share that fellow NCADA member and trial lawyer Don Cowan passed away on April 1st. Don joined the NCADA as a Charter member in 1977 and delivered his first the Recent Case Law Update to the membership at the 1979 NCADA Annual Meeting. In 1982, Don began presenting the Case Law Update twice annually at both the Annual and Fall Meetings - a tradition that the firm, Ellis & Winters, continues today.
Cowan was a graduate of Wake Forest University and the Wake Forest School of Law. He began his civil litigation career in 1973 following service in the U.S. Army Office of Staff Judge Advocate General Corps. A true leader in the law, Don was a Fellow, Regent, and Secretary of the American College of Trial Lawyers, and a former member of the ABA House of Delegates. He was a past president of the North Carolina Bar Association and Legal Services of North Carolina (now Legal Aid of NC). He served on the NCADA's Board of Directors from 1987 to 1990, and was presented the J. Robert Elster Award for Professional Excellence in 2007.
A memorial service will be held at 11 a.m. on Saturday, April 13th, at Christ Church on Edenton Street in Raleigh. For more information, please visit the complete obituary.
Please share your memories of Don with us by posting your comments here.
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