Two Duties of Lawyers

Two Duties of Lawyers

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Lawyers and Loyalty

Consider the following opening paragraph in Magistrate Judge’s (Hon. Nan R. Noland) opinion in regarding e-discovery in Kleen Products, LLC v. Packaging Corporate Corp. of Am. (___ F.Supp ___ S.D.N.Y.___ (Sept. 28, 2012, 2012 WL 4498465).

“Lawyers have twin duties of loyalty: While they are retained to be [1] zealous advocates for their clients, they bear a [2] professional obligation to conduct discovery in a diligent and candid manner. Their combined duty is to strive in the best interests of their clients to achieve the best results at a reasonable cost, with integrity and candor as officers of the court. Cooperation does not conflict with the advancement of their clients’ interests—it enhances it. Only when lawyers confuse advocacy with adversarial conduct are these twin duties in conflict.” The Sedona Conference, The Sedona Conference Cooperation Proclamation, 10 Sedona Conf. J. 331, 331 (2009).”

This language was written by Magistrate Judge Nan R. Noland, in a battle over e-discovery.  The case is a great one for education. The quoted passage starts with the judge’s “Memorandum Opinion and Order.”  In my opinion, this language presents one of the noblest sketches of just lawyering. It gives an exposition of zealous advocacy that does not include hiding evidence or obstructing discovery as part of what it is to advocate in an adversarial context. 

It also begins to sketch in the Sedona Ideal that which is to be found in its Proclamation of Cooperation to which many jurists do subscribe.

Her portrait involves only two problems.  The first one is that she hasn’t really made up her mind whether the duties to which she refers are actually one duty properly understood.  To see if I am right, look at the spellings of “duty.” The second one is that advocacy and adversity are always opposing ideas but you can’t have the former without the latter.  Advocacy always involves opposition.  There is no such thing as an argument without there being at least doubt. She really and actually says “adversarial conduct.”  The trouble is that speaking, writing, arguing advocacy, and even just arguing are species of adversarial conduct. The problem lies in the complex concept of conduct.

Still, I must confess that I am enormously attracted to this judicial philosophy, and I think it should become a generalized rule for all litigation. Loyalty and zealousness in representation now tend to mean that all legal methods of answering, objecting to, and obstructing discovery are fair game.  That view to ethical lawyering is really ethical lowering. It favors the strong and wealthier, and it disfavors the weaker and the less wealthy, even when the latter depends on the former for income, e.g., in some divorce cases.

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“Madam. Are you certain today?” [Sketch I]

“Madam. Are you certain today?” [Sketch I]

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There is a species of questions with respect to which witnesses (including expert witnesses) must be extra-careful. The category questions certainty. Often the question takes a simple and explicit form. The witness has said something clearly and straightforwardly, whereupon deposing counsel says to the witness:

Q. Are you certain of that?

Many answers are susceptible to this question.  It’s one of those questions where examining counsel does not really care what answer is given. Look at two alternatives:

A#1:  Yes.  I’m certain of that.

This answer will make the witness look arrogant, and it will subject her to impeachment later on at trial.  The impeachment will be presenting a whole group of situations that make the witness have to admit that she is not certain.

It was dark, wasn’t it, true?

You said the man you saw was about 5’6″, how tall is the woman sitting at the next table?

You didn’t have on your sunglasses, did you, even though it was noon in Austin on August 17th, true? 

[And so on and on and on.]

Now look at A#2:

A#2.  No, I am not certain.

Of course, then on direct examination at trial, or in settlement arguments, where the witness may not even be present, the side of the examining counsel will attack the witness for not really having trustworthy testimony.

How/z about this:

A#3. Yes, though not quite completely certain.  No one could be.

Much better.  Maybe best.  What is examining counsel going to ask next? All the choices I can think of sound intrusive, too perfective, even absurd.

Quinn on Answering Another really good way to deal with this problem is to challenge the question.  There are a number of ways to do this.  I will call them QWs after “Questions by Witness.” Try QW#1:  What do you mean by “certain”? Capable counsel might ask this question in response: Q#2  What do you mean by “certain”?  Ways to deal with this second question is to say: A. The term “certain” can be used in a variety of different ways. And the discussion will go on for a while. The witness can look like she’s avoiding giving a reasonable answer. So consider trying these.

A#(i).  I think so.A#(ii). It depends on what one means by “certain.”A#(iii). Well, it’s an empirical matter, not like mathematics, so no reasonable person can be absolutely certain. Given that caveat/limitation/caution, yes, I’m certain.A#(iv).  Certainty is a psychological state.  It has nothing to do with justified true belief.  I have the latter three.

Personally, I like A#(iii).  The witness looks reasonable and it is very difficult to challenge the idea that no one can be absolutely certain about purely empirical matters.

I like A#(iv) too but it’s complicated. Still, probably most people will agree with it.

I have heard “idiot” lawyers try this one:

Q. Are you certain?A. Yes. Q. Are you absolutely certain?

The lawyer has dug a deep hole for himself.

A. There is no such thing.A. Only a dogmatist fool would ever say something like that about this kind of matter.A. I don’t understand the difference between “certainty” and “absolute certainty,” althoughI’m certain you must think there is.

Quinn’s First Comment: This lawyer should get an award from “the local” of “Questionable Dumb Bell.”

A questioning lawyer may object on the grounds that the answer is not responsive, and try to get another answer. Protecting lawyers should argue against this. Here’s one way: “Yes it is. Move on.”Here’s another way. “Please explain your objection. Why isn’t what she said responsive?”  Protecting counsel might consider trying “another” way first and then go to the first way second.

Quinn’s Second Comment:  A witness should be prepared for this kind of question.

Quinn’s Third Comment: Try this. Without saying anything as a preference: “I am certain, though not completely certain.”

Quinn’s Fourth Comment: Try using responsive questions:

Q. What do you mean by ‘certain’?

This may generate a responsive question:

Q. What do you think the ‘word’ means?

A. There are so many meanings, Tell me what you are thinking.

And so forth.

Quinn’s Fifth Comment: Try to shift the discussion to the meaning of “sure.”

Q. Well, OK, you are not certain about X because you view if the world is that one can not really be      certain about anything.  Of course, lots of people would disagree with that.  You know that don’t you?

A. I think so. And lots of people say that sort of thing.

Q. You not willing to say that you know that people disagree with you>

A. Knowledge and certainty are not the same things.

Q. OK. Let’s try it this way.  Are you sure about what you have said?

Elaboration on Quinn’s Comment: Above all, the witness should say something like this, “I’m not sure what the difference is between being sure and being certain.  I’m not sure how to talk about this, and I’m not certain how your question works.  Please give your definitions.”

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The Chesley Scandal–Never Ending?

The Chesley Scandal–Never Ending?

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Stan the Man” has been a lucky bull-shitter for a generation.  “I have been a great lawyer for my 53 years of practice.”  “I am the world’s leading negotiator.”  “I am a great trial lawyer.”  All false.  “I recovered billions for clients, e.g., out of the Lockerbie tragedy and out of the Beverly Hills Supper Club fire.” None of it is true.

The latest chapter in hidden sordidness of his half-century in practice was his involvement with a group of KY lawyers easily called the “Partnership of Three Crooks,” not counting Chesley.  His main function, in that case, was to be somehow involved in what amounted to bribing the judge. Oh! yes! That judge has been disbarred for his involvement in this evil fiasco.

All of these cases were won by a phalanx of talented plaintiff’s lawyers, many of them better in all sorts of ways than he. “Stan the Man” had not himself actually tried a case in many years before he was disbarred in Kentucky, suspended for practice before the United States Supreme Court where it is doubtful he ever argued a case and was almost certain to be disbarred in Ohio following the Kentucky disbarment by the Supreme Court of that state after he got caught stealing many millions of dollars from the little-person victims he said he loved. (Prudently, Chesley retired from practice before the court got to him. The Ohio Supreme Court called his retirement “unconditional, final, and irrevocable.”  Who has ever heard of resignation like that?)

By the way, Chesley also retired from practice in Michigan and Indiana.

If Chesley had great talents they were these: (1) organizing teams, (2) getting a reputation early, (3) obtaining a good deal of publicity, including what is now called “branding,” (4) talking a good game, (5) causing fear in the hearts of “timid avoiders” and companies that thought paying hefty sums–often through their insurance companies–was protection from (a) publicity, (b) encouraging others, & (c) impacting social/public policy in ways they regarded as possibly dangerous. Of these, energetic organization, some skill, some speaking, and having a savvy grasp of publicity were his actual routes to a phenomenal-looking career and an eventual marriage to a federal judge.

Now we ready the second highest pinnacle in his discarded and dishonorable career.  After he quit his practice in disgrace, the “governors” of the City of Cincinnati appointed him to the Cincinnati Human Relations Committee. The City approved his appointment by an 8-0 vote. The jurisdiction is to be found in its name. At least he has not been appointed its treasurer.

Currently, Stan and his federal district court judge, reside in what is said to include 6 bedrooms, 7 full bathrooms, custom chandeliers, one or more wine cellars, 2 garages for 4 vehicles each, garage apartments attached, and 27,000 square feet of living space. It is said to be enclosed by 300 acres of some of the most beautiful grounds in or near Cincinnati.

There are at least three major events left in this down-and-dirty saga. In one of them, the Three Crooks have a judgment against them.  They are to pay their clients the $42M of the dollars they stole from them.  In another, there is still the matter of $1.5M one of the Three Crooks counted as expenses but didn’t write them down at all–in no way.  That case will have to be tried. In the third,  Kentucky courts will seek millions from Chesley himself. Too bad he wasn’t found to be a part of the Kentucky group out-of-box.  If that had happened and if the group of Three didn’t have the money to meet the $42M figure, Stan would have to pay the whole sum.  Rumor has it he’s got the money.

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Kentucky and the Saga of the Three Crooks

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Consider the case of Abbott et al.  v. Chesley et al. (Ky.  2011-SC-000291-DG), decided late-August 2013, easily findable on the internet.

This case arose out of the fen-phen outrage–You Know: the one where foul stuff physically injured thousands of people and generated millions of dollars in recovered damages; that led to the disbarment of 3 Kentucky plaintiffs lawyers, a Kentucky judge, and the disbarment and forced retirement of a Cincinnati “hot shot,” Stanley Chesley.  Maybe you remember him.  He lives high on 3 or 4 pigs stacked up; he and his Federal District Court Judge spouse share the highest-priced house in or around Cincinnati; he’s the one that has been suspended from practice before the Supreme Court of the United States and has been forced to retire from practice in Ohio, Michigan, and Indiana. (Oh, I should have reminded you.  As a rule, if state X disbars L from  practice, states A, B, and C do so as well.)

Here’s what happened. The court decided on the basis of the law as well as uncontroverted and incontrovertible factual evidence, that the Kentucky lawyers involved in representing over 420 plaintiffs in their cases against the fen-phen company and who managed to cheat them out of  $42M, owed their former clients what they stole from them, and that any one of them would have to pay the whole tab if the others couldn’t pone up. The trial court had decided that; the intermediate court of appeals reversed the trial court; and the state supreme court reversed the court of appeals, thereby reestablishing the judgment in the trial court.

Given its lengthy opinion, the supreme court might as well have looked at the court of appeals and said, “Good God.  Have you all gone totally nuts?”

In my opinion, the only thing wrong with the court’s opinion is that it did not include Chesley, the Ohio crook, in the gang of Three Crooks and thereby making it four. In a way, Chesley’s shame is the largest of all. If the group was renamed the “Gang of the Four,” the 3 low-class runners can be discarded as minor players, even though they ended up with most of the money. The leader of the pack, the real gangster was Chesley. 

He has to be sued separately. Sue him for breach of contract. Sue him for reckless malpractice. Sue him for deliberate misrepresentation. Sue him for fraud. And above all, sue for punitive damages. The jury will award this part of the lawsuit by millions and millions of dollars. Only then might this shameful insult to the nobility of the bar and the glories of our system of justice be sustained.

Still, why did Kentucky pass the matter to its neighbor? Maybe it was a matter of Bordering State courtesy. Kentucky wanted to let Ohio boil its own schmuck in oil, let the media tar him, and then hand him over to its hometown to feather him. 

Alas, the strategy went amiss. The Ohio Supreme Court did what it was supposed to do: greased him up, boiled his butt, let the media tar him, and then let his hometown feather him. At this point, the plan went haywire.  The town feathered him, alright. The mayor appointed Chesley to a local governmental commission looking after parts of the town’s social interaction, race matters, for example–a 21 member committee whose real (under the table) job was to provide more prestige to city supporters. Curiously the city council approved the appointment 8-0.  (It seems to me that the most rational thing to do under these circumstances is to resign. Sitting on the same board is sitting next to a crook.  It’s like standing on the election platform with Anthony Wiener.)

There are three alternative explanations. The 9 involved folks have a limited vocabulary and do not understand the ambiguities and subtleties in and surrounding the word “feather.”  Maybe they can’t grasp the concept.  Or maybe they are just “Idiots,” as the current terminology goes.

I would certainly not suggest that there was patronage, bribery, or out-and-out crookedness going on here.  Such goings-on simply could not happen in a place like Cincinnati.  In the alternative, I must remind the readers that lawyers have a duty not to speak ill of sitting judges; it’s contrary to legal ethics since we are officers of courts and therefore quasi-public somethings or others.

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The Insurance Appraisal Process–Part III

The Insurance Appraisal Process–Part III

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Insurance Adjustment and Appraisal

Part III

The question now becomes: How do Umps figure into all this?

What an ump should be like is the same as that of the appraisers, but it also involves additional dimensions. Some of these are not obvious from the Appraisal Clause. Some think that if an ump can more-or-less think through the work of the opposing appraisers, they are qualified to resolve the issues.  Under many–and probably most–situations, this view is false.This can be determined, in my opinion, simply by considering what the roof problem would look like if the ump was not knowledgeable about roofs.

Surely, umps must have at least the same competence that the two appraisers do. Imagine an Ump who could not evaluate the work of the other members of the panel. You might as well have an Ump who reads and speaks and understands only French and does not speak or understand English at all. In addition, there will be a discussion presently of this Ump’s explicitly stated obligations to which he agreed and how they were not met in this case. Given the requirements for panel members internal to the appraisal, it is obvious that all members of the panel must have been honest and accurate in presenting themselves as potential members of the panel, e.g., in a nomination-selection process. Unquestionably, the same would apply even more stringently to a potential Ump. 

Here are some simple and obvious requirements. It is impossible for an Ump to be part of an appraisal panel if he does not know how to appraise. He cannot make sound decisions by himself, rising above a deadlocked panel. He cannot use best judgment and cannot genuinely pursue a just result, if he does not know the process involved. He is not deciding which side is making the better case, although he may look at those issues. He is deciding the appraisal himself. Imagine Cinderella deciding the cash value of the palace of the Wicked Queen, when the architect and the general contractor of the realm cannot agree.

Here are some “extra” requirements to be placed on Umps:

Extensive knowledge as to how the physical factors that are the focus of the adjustment fit together, whether and how the damaged objects can be repaired replaced, and the costs involved.the proper computation of losses under the relevant insurance policy, e.g., the difference between repair, restoration, and replacement, plus what types of monetary amounts should be employed, e.g., local sums, national sums, amounts used from higher priced regions, amounts used from lower priced regionsgrasping and using sound techniques of examining the work of the appraisersthe ability and willingness to defend his computationproper methods of calculationthe willingness to resist simple but generally invalid methods of calculation, such as averaging the two different numbers the appraisers suggest.        

See Karl A. Schulz, “Accurate Outcomes in APPRAISAL: The Importance of the Ump’s Subject Matter Expertise,” Journal of Consumer Law (2012)   

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Quinn Quotes

A balanced life is a good life and maybe the best kind of life. No single value can always do the needed work to make a life flourish..  There are two additional problems. alas. It is not easy to find what is balanced, and it is difficult to maintain balance without dedicated practice, and not even they succeed all the time, party because most of life’s tendencies tend to drift and change. The only values that are unassailable and permanent are love and beauty. Wisdom, if one has it,  is often good thing, if one can recognize it.~Michael Sean Quinn, PhD, JD, CPCU, Etc.Tweet

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Michael Sean Quinn, PhD, JD, CPCU, Etc*., is available as an expert witness in insurance disputes and other litigation matters. Contact