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.