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