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We're Going To Be Around A Lot Longer Than This Case


           I did not realize at the time I heard these words 20 years ago the gift I’d been given in the mentor with whom I was serving as “second chair” in defending a personal injury claim against our client, a utility company.  The plaintiff pushed a steel rod off the side of a parking garage under construction.   The rod drooped down and contacted 19,900 volt power lines.  (Most overhead lines are not “insulated” and, thus, if contacted by metal will conduct electricity.)  The electricity that entered the plaintiff’s hands and arms injured him significantly.    Fortunately, the plaintiff was not killed.


          We retained an electrical engineering expert to testify for the defense.  As with any expert dealing with the obligations of utilities in maintaining power lines, this expert referred to the National Electrical Safety Code.  That Code sets forth certain heights above ground, and distances from buildings, at which power lines can be located and be considered within proper standards.  Another section of the Code obligates utilities to take into account “local conditions” and increase heights or distances in light of them. 

         The expert here was willing to ignore the local conditions part of the Code.  Plaintiff’s counsel had not tried a utility case before and did not ask in depositions the expert (or any utility company witness).  Although theoretically plaintiff’s counsel could have gone into it at trial, we were pretty confident the plaintiff’s lawyer did not know about the local conditions in the Code that utilities knew all too well—and which an expert, if he were performing a thorough analysis, would consider.

           Out of the presence of the expert, I suggested to lead counsel on the case—the head of our firm’s litigation team—that we would be better off letting the expert testify, as he was willing, without engaging the question of the local conditions.  I could tell my colleague was not comfortable with that.  He paused and then said, “You and I both know that utilities regularly take into account not only the height/distance sections, but the local conditions provision.  We would not be presenting fair testimony, and indeed would be misleading the jury, to offer the testimony our expert is willing to give.  First, it’s not right to do that; and second, it’s not worth sacrificing our reputations for a single case.  We’re going to be around a lot longer than this case. I’m not saying we put ourselves ahead of the client.  I’m saying we offer testimony that’s helpful and argue that the plaintiff does not prevail under that testimony.”

          We ended up going with the more complete testimony and, after several hours of deliberation, the jury returned a defense verdict.  Interviews with jurors afterward suggested that they believed the “local conditions” did not justify anything more than the power company had already done.   From time to time, I wonder about this case.   Specifically, I wonder whether—if we had gone with the “modified” expert testimony—that leaving out the local conditions testimony was the reason for the defense verdict.

          Fortunately, due to a good mentor who taught one of the most valuable lessons I learned as a trial lawyer, I don’t have to guess about what would have happened if we had been candid in our defense.  When I hear lawyers now talk about being able to “live with themselves” because of the way that they try to practice, I always think of this example.  Contrary to the views of many, there are admirable lawyers.   When we find them, we would do well to emulate them.  

              -- Professor Ben Madison, Regent University School of Law

11 comments:

  1. great thoughts Professor Madison. I remember you sharing this in class, but had forgotten. Good to be reminded of the importance of integrity in the practice of law.

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  2. It really does come down to those little decisions in the moment, doesn't it? The purpose of resolving in our hearts ahead of time that we will or will not do something helps us to keep our minds and consciences clear later. I am copying down the quote for my Quote Book. It is good as well as sobering. Thank you for sharing this and for your candor both on this blog and in class.

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  3. This post was very insightful for me and serves as a reminder of the importance of the day-to-day decisions that we make and how it impacts our reputations and our personal lives. It is very important to serve as an attorney which will live our personal and professional lives with integrity. At the end of the day, we have to live with ourselves and the consequences of our decisions in light of temptations which we will inevitably encounter in various situations in practice.

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  4. This post is great. It helps remind lawyers, particularly up and coming lawyers, that being a good and honest person in our career is going to be more rewarding in the long run. It is sometimes all too easy to take a path that seems to benefit you and or your client but may not be completely right. I hope that when I start my career I have a mentor like this who helps to guide me in the proper direction if I sometimes find myself starting to turn towards something that in the long run will come back to get me. All those little decisions really do sit at the core of the person others see you as.
    Knowing you from class and listening to what you say is always insightful. It is sometimes nice to be reminded that we are all in fact human and can sometimes find ourselves grappling with decisions that we may need extra guidance on in our day to day decisions.

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  5. I think situations like the one you described are a great test of integrity. I've always heard that integrity is what you do when no one is looking. In this case, the jury would never have known the difference in the complete testimony and the expert testimony. I think it shows the integrity of the lead counsel to make the decision to do the right thing when he didn't have to.
    I do not think it is ever putting yourself before the client to do the right thing. Trust can easily be lost but is very hard to gain back. It is in your client's best interest to have a trustworthy reputation.

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  6. I just hear those voices in my head from Sunday School and grandparents. Integrity is something you can lose in a moment and take a lifetime to master. That is why part of the Lord's prayer says, "deliver me from temptation!" We can only succeed daily with God's grace empowering us.

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  7. Professor Madison was lucky enough to have a good mentor sitting right by his side when the time to make the tough decision came. Many of us will not have that luck. My own mentor knew that he would not always be there, so he encouraged me to think about the long term consequences of any decision I would take. I was to ask myself “How will this decision look tomorrow morning? How will it look two years from now? Five years?”

    Asking myself those two questions helped me gain a broad-view perspective, and so they helped me make wiser decisions. It is hard to see the big picture when one’s nose in on the grindstone, and stepping back and thinking about long-term consequences can be of benefit when there is no mentor around to guide us.

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  8. What Professor Madison's mentor said in essence--that a lawyer's longterm reputation depends on how he or she handles a case in the present--has helped me a great deal in law school. This principle gives me peace in reinforcing the principle that it is better to do what is right instead of taking the shortcut. Specifically, learning this concept has helped me realize that I am not hurting a client when I do not take an inappropriate advantage because establishing a reputation of integrity will help my clients in the long run. To me, it seems like a win-win!

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  9. While I understand, to the extent a law student who has not been presented with the situation can, the concept that cases come and go, but we must live with the decisions we make as an attorney, I am concerned that the answer will not always come easily, or present itself. At least in this situation, as presented, leaving out part of the expert's testimony could be considered lying to the court - an obvious violation of the Rules of Professional Conduct.

    I am more concerned with the situation where what is best for my client (and still complies with the Rules of Professional Conduct) conflicts with my own personal views or stance. When what I should do as a lawyer is also the very thing that will make me have a hard time "living with myself." The easy answer would be to try to avoid those situations - but even I realize that is not always possible. I do not have an answer. I suppose it is food for thought and something I will have to think over as I enter the practice of law.

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  10. Caleb raises some good questions. I think it can help to form a view of the legal system before entering practice. Among others, one view is to represent your client to get the absolute best result for that client no matter what. A second view is to leverage the legal system to make a great reputation and career for yourself. Another view is that the legal system is a system to help resolve disputes. I tend to lean toward the latter. I think having such a view can help in making decisions that lead to a fair presentation of evidence that leads to a fair outcome. Of course, in doing so, one must fight for your client. In doing so, a good career will materialize in the long run and possibly much sooner.

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  11. The essence of this post is always think positive and give respect to get respect.It is very difficult in the lawyer profession to maintain a good reputation.
    The Wiseman Law Firm

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