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.
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.