CALIFORNIA LAWBUSINESS
The Closer by James D. McGinley

Guiding Light

Lawyers need to prove positive leadership and look to a client's long-term interests.

All too often, in search of zealous advocacy, lawyers follow instead of lead. It is an easy course, and it can readily be justified as following the client's direction. Unfortunately, there is an increasingly common perception that lawyers work for clients much like common employees. It is this misconception that distorts the attorney-client relationship and is one key explanation of why both often take the low road in litigation.

Recently, I was disheartened to see the parties in a wrongful death suit watch in dismay as an attorney representing the decedent's spouse tried to pit the spouse against the decedent's parents.

Doubtless, there were some additional damages that only could be claimed at the parent's expense. However, this simplistic approach was fundamentally flawed. In failing to respect the needs of a family relationship that easily could be harmed irreparably during the course of the litigation, counsel mistakenly had thought that money was his client's only interest.

Under these circumstances, a client desperately needs a lawyer who is willing to provide positive leadership and help them to see the importance of their long-term interest rather than creating disharmony under the guise of a modest financial gain.

In the course of the attorney-client relationship, one of the primary benefits the attorney has to offer is a steady course during turbulent times. Consequently, it is the attorney who must be the dispassionate voice of reason and take the long view during heated litigation. More pointedly, only the attorney can help the client to see beyond the immediate stress of litigation. More pointedly only the attorney can help the client to see beyond the immediate stress of litigation. In this way, the lawyer with solid leadership can steer away from needlessly exacerbating the current crisis.

Disappointingly, all too often we as attorneys fail to lead under these circumstances. We merely tag along with the client rather than help buttress our clients against their own worst instincts.

For example, the bar is typically at its lowest point as a profession during the course of deposition. Much like a bad game of pick up basketball, each attorney is left to act as his or her own referee. The shameful result is a race to the bottom, as each attorney must sink even lower to gain advantage in what any well-balanced outsider would view as a cheater's paradise.

On this point, one striking incident comes to mind where opposing counsel took his shoes off during the course of a deposition and eventually wound up with his feet on the conference-room table. He also resorted to screaming at the witness, attempting to "cross-examine" her in an apparent effort to "sweat the truth" out of the deponent. When this approach did not work, the angry attorney thought that swearing at the witness might improve his results.

It rapidly became clear that normal objections were of little use under these circumstances, so as recess was called, during which opposing counsel was reminded that my client was a human being, approximately eight months pregnant and that the entire line of questioning had nothing to do with the issues presented in an insurance bad-faith law suit. Fortunately, he admitted that his anger had gotten the best of him and sufficiently improved his approach to allow the deposition to finish.

Another example of similarly shocking behavior came when opposing counsel had failed to produce any of the required documents at the time of her client's deposition. When pressed, she eventually produced a file with some requested documents, opposing counsel suddenly decided that she might have written on some of the documents and leaped across the table to try to grab the file from me. Thereafter, much like a child throwing a temper tantrum, opposing counsel would not take her seat or stop screaming until her embarrassed client finally left the room. Eventually, with some counseling about professionalism, the deposition continued to conclusion.

In each of these circumstances, some measure of order was restored only after deliberate professional leadership was exerted. Clearly, it is extremely tempting to join the race to the bottom, but everyone loses under such circumstances. At least one attorney needs to take the high road and exercise professional leadership to restore dignity and decorum, which should provide the hallmark of the litigation process. While pulling out of such a "death spiral" is never easy when the emotional need to play tit-for-tat is extremely compelling, without a clear and distinct effort to de-escalate tensions, the litigations process will fail.

Many members of the bar, especially those who are newly sworn, are simply at a loss to provide the leadership that it takes to set the parties back on the course. Under most circumstances, the first step is to recess the deposition and allow a few minutes for tempers to cool. Thereafter, a quiet and private one-on-one discussion with opposing counsel, which addresses the source of irritation and suggests a more constructive approach, is the key to resolution.

Leadership, therefore, requires admitting some error of your own while appealing to opposing counsel's desire for a reputation of professionalism. This approach provides the best opportunity to re-establish a constructive discourse. Finally, reconvening with a line of questioning that is entirely different and less contentious, provides the best chance to move beyond the earlier breakdown in professionalism.

As attorneys, we are in the unique position to effect change in our proper role as officers of the court by prompting judicial oversight of the other two branches of the government. However, our role is even more exclusive because we represent the first line of defense against judicial overreaching, as well. As the critical part of Americas system of the checks and balances, attorneys must exercise extraordinary initiative and seasoned leadership.

For example, in the fight against the bad-faith insurance practices of many health maintenance organizations, attorneys have shaped a national debate that will likely end one industry's blanket immunity from civil liability and reduce the interference of the federal ERISA statutes on pre-existing state remedies. The families who have been wrongly denied medical care by their health maintenance organizations need to be heard above the din of special-interest lobbyists.

Whether an attorney's obligations are to his or her clients, to other attorneys or to the community as a whole, we are each challenged to lead. It is only through bold and well-considered leadership that each of us can restore the dignity and the respect of our profession. Fortunately for attorneys, the opportunities to act with bold leadership present themselves daily and often require nothing more than moral courage to seize the day.

James D. McGinley, a lieutenant colonel in the Marine Corps Reserve and the Commanding officer of an assault helicopter squadron, is a partner with Hiepler & Hiepler in Oxnard.