Avoiding "What the Hell Just Happened?" Moments at Trial: Follow Ethical Rules 1.1, 1.3, and 1.4

1. How Do You Avoid Those “What the Hell Just Happened?” Moments at Trial?

2. Simple Answer:Just Follow Ethical Rules 1.1, 1.3, and 1.4 Failing to Prepare is Preparing to Fail

3. Speakers Nicholas Szokoly S. Todd Willson Brittany Nasradinaj

4. RULE 1.1: COMPETENCE

5. Rule 1.1: Competence • A lawyer shall provide competent representation to a client • Competent representation requires the legalknowledge, skills, thoroughness, and preparation reasonably necessary for the representation.

6. Competency Factors Preparation lawyer devotes to the matter; Feasibility of consulting with other lawyers of established competence in the particular field. • Relative complexity and specialized nature of the matter; • General experience of the lawyer; • Training/experience in a particular field;

7. Preparation is Key! • Top 5 P’s of Litigation: • Prepare • Prepare • Prepare • Prepare • Prepare

8. HELPFUL TIPS TO REMEMBER • Know the file inside and out • Know the case better than your adversary • Know the facts • Know each and every issue, as well as what could become an issue • Keep organized

9. Case Example • Albritton v. Gillespie, 180 S.W.3d 889 (2005): • Breach of contract action against employer • Attorney advised both clients to testify as to their own damages • One client had a financial background, while other client’s expertise was in theology • Jury found employer had breached its contract… • BUT… Client with financial background recovered $4 million, while client without financial background recovered $0 TAKE AWAY: An action for malpractice may be grounded in an attorney’s failure to provide well-prepared expert testimony.

10. Case Example • Perkins v. American Transit Insurance Co.,2013 WL 174426 (2013): • The need to retain a replacement expert • Motor vehicle accident case • Attorney failed to call medical expert at trial because expert was unavailable • Judgment was entered against clients, forcing them into bankruptcy • Court held a trier of fact could find attorney negligent for failing to apply for and procure a 2nd IME TAKE AWAY: An attorney’s failure to seek leave for another IME, even shortly before trial, is not a protected judgment call.

11. Avoid Neglect of Cases • Respond to clients, follow deadlines, and keep clients informed of important issues! • NEW YORK Cases: • ACG v. Brian Kellogg • (2013 New York Attorney Grievance case) • In the Matter of Warren Scott Goodman • 76 A.D.3d 218 (2010) • In Re McGinnis • 274 A.D.2d 269 (2000)

12. TIPS (Continued…) • Go to the scene • Be familiar with any technology you will be using • Dress the part • Be in control (and stay organized) • Preserve the record • Know the judge and courtroom • https://www.youtube.com/watch?v=WkeNd1Ni4Uw • https://www.youtube.com/watch?v=WkeNd1Ni4Uw

13. How to Get Trial Experience… …Without Having Trial Experience. • More settlements and fewer trials • Take on other matters (small claims cases, motions, depositions, small personal injury cases, mediations, infant settlement hearings, etc.) • Don’t be in a hurry to leave the court building • Talk to law clerks, judges, experienced attorneys • Read the Rules of Evidence, over and over again

15. Exxon Valdez Oil Spill This Duck Knows the Price of Failing to Prepare

16. Rule 1.3: Diligence • A lawyer shall act with reasonable diligence and promptness in representing a client • ABA Comment: A lawyer must act with commitment, dedication, and zeal on the client’s behalf/

17. Rule 1.3: Diligence A lawyer should pursue a matter on behalf of a client despite opposition and obstruction A lawyer’s workload must be controlled so that each matter must be handled competently 31 years - Problem case – Center of Your Desk Diligence = Determination 1.3 - Protect those who trust you - Fulfill their Trust! Secret Powerful Weapon/

18. This Is a Flare Gun

19. Real Life Story - The Prepared Attorney • A lawyer who believed in thoroughly preparing his cases was retained • Insurance limited to $100,000 • Lawyer agreed to reduce contingent fee to give client max recovery • Advised client to keep car in storage

20. The Pirate • Another attorney approached client and learned of proposed settlement • Had the client fire the attorney, calling him an “ambulance chaser” • Told the client to get rid of the car for the storage fees • He promised to conduct the necessary discovery • A $100,000 was a “drop in the bucket” • Promised to recover $1 million • Three important words /

21. You Did What? • Despite his promises, the pirating attorney failed to conduct the necessary discovery • Failed to prepare the expert discovery necessary to prove $1,740,000 in damages • Ignored his client’s numerous requests for information • Failed to act with diligence and settled the case for $100,000, taking $33,000 for himself • Guess what happened to the Pirate?/

22. The Malpractice Verdict • As a result of his malpractice, the Pirate was found liable for: • $740,000 for medical bills • $1 million for loss of wages • $250,000 for pain and suffering • $250,000 for loss of consortium • $33,333.33 for attorney’s fees • But it doesn’t end there…/

23. The Attorney Grievance Trial • At the Attorney Grievance trial, the pirate was found in violation of: • 1.1 (for not providing competent representation) • 1.3 (for not being diligent in his cases) • 1.4 (for not communicating properly) • The Pirate was suspended from the practice of law INDEFINITELY • All HELL just happened • Another Great Weapon - Our Friend and Buddy../

24. FEAR Using Fear to Avoid Those “What the Hell Just Happened?” Moments at Trial • “I have been at this 60 years and every time I start a jury trial, I am afraid.” • “You would think that after all those years that I wouldn’t be that way but I am.”/

25. Fear is Your Buddy • “We’re all really very afraid. I think we have to recognize our fear and use it.” • “Once we face it and own up to it, it will energize us, and magically it will retreat like a cowering dog.” • “If you’re not afraid, you don’t care. If you don’t care, how can you ask the jury to care?” • Fear Diligence = Determination Preparation = • Will Avoid “What the Hell Just Happened?” Moments • Will Protect Those Who Trust You

26. My Story - My Confession 31 years – First 10 years If Insurance Try it! Try everything! The Bigger the Better. The Worse the Better. I have no fear. No Worry.

27. And Then… Over 20 years ago – Legal Malpractice Trial – Big, Tough, Rugged, Strong, Seasoned Lawyer Courageous, Ferocious Battle Win – Defense Verdict The Tough Lawyer The Claims Rep. Instead of denying fear – More Worried, Afraid For People Who Trust Me More Diligent, Determined, Prepared – To Protect Attorney, Claims Representative/

28. Summary • Don’t Deny Fear – Use It Greatly • Fear is Your Friend and the Buddy of Those Who Trust You • Fear Diligence = Determination Preparation • Will Fulfill 1.3 • Will Avoid “What the Hell Just Happened?” Moments • Will Protect Those Who Trust You/

29. RULE 1.4: COMMUNICATIONHow to overcome your worst cross-examination and still win at trial

30. Rule 1.4: Communication Rule 1.4: (a) A lawyer shall: • (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent is required • (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; • (3) keep the client reasonably informed about the status of the matter; • (4) promptly comply with reasonable requests for information; and • (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. • (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

31. And you thought the GOP debates were scary? Mixter v. M.E. Burton, ___ Md.App. ___, Sept. Term 2015 (September 15, 2015). Client, Plaintiff Railey, tanks the deposition as to Claims against the Cochran Defendants. Was 1.4 followed? Was Client advised that the Claims against those Defendants were beyond saving? Sure doesn’t sound like it…

32. Ruh Roh Shaggy! Counsel for the Cochran Defendants argued that had this matter simply been dropped after this deposition, probably no sanctions would have been sought. It was certainly blatantly obvious after Ms. Railey's deposition that her case against the Cochran Defendants was nonexistent. Counsel for the Cochran defendants argues that Mr. Mixter proceeded nevertheless to prosecute this case up through the ultimate dismissal by way of this Court's order granting summary judgment.

33. Check please. This Court now finds that the deposition of Ms. Railey so seriously undermined her complaint that she and her attorney should have known that the case against J.G. Cochran Auctioneers & Associates was frivolous from the start. Consequently, the various motions, notices of deposition and subpoenas advanced by Ms. Railey, through her attorney Mr. Mixter, were both in bad faith and without substantial justification. Sanctions: $111,886.25. Client’s share: $10,000 “[F]or not properly communicating with Mr. Mixter, and for not instructing Mr. Mixter to dismiss the litigation.” Attorney’s share: $101,886.25.

34. 1.4: Communication - Sometimes, you have to admit that it all went wrong.

35. We are in trial, what do the ethical rules have to do with it? … (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; … (5)b A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

36. Oh, it happened. Setting the stage: • Client as next friend of Plaintiffs has one job, testify about the dates of tenancy and about the deteriorated paint conditions. • Tenancy period is clear based on lease and move out documentation.

37. But, there’s just one thing… During the tenancy, witness’ wife sent a letter to the landlord advising that she was about to move. She didn’t move and testified as much, but, [damn ethical rules] attorneys could not tell her husband what she testified to.

38. And, off we go. Direct was uneventful. Cross, however was an adventure. Witness adopted Defense assertion that the notice letter was the date they moved out.

39. How he looked on cross was very similar to my face watching it happen.

40. CODE BLUE!

41. Recovery - I take 0.001% credit. Remember the six people and two of their friends that couldn’t get out of jury duty. Disaster is in the eye of the beholder. Give people some credit before you break out the lifeboats.

42. Back to 1.4 Honest appraisal of how the trial is going. Honest appraisal of what can and is likely to happen next. Written communication of settlement offers and decisions.