McElhaney on Litigation
A Client’s Own Worst Enemy
When the Person You Represent Behaves Badly, It Makes Your Job a Whole Lot Harder
Posted Feb 25, 2005 7:58 AM CDT
By James W. McElhaney
Sandy Garcia stormed into Zapata’s Chili House around noon and flopped down in the back booth.
“What’s the matter?” said Mike Pirelli. “You look like you’ve just escaped from Judge Feckler’s torture chambers.”
“I wish it were that easy,” said Sandy. “It seems like all my clients are their own enemies, but this latest one is the worst. He just killed his own case.” “Can’t be worse than some of the ones I’ve got,” said Mike.
“He’s a truck driver,” said Sandy. “Got a bad knee injury in a collision and can’t drive anymore. Can’t even climb into his rig, much less sit behind the wheel with his foot on the throttle for 10 to 12 hours a day.”
“How did he kill his own case?” said Mike.
“He’s got a foul mouth,” said Sandy. “He’s a congenital curser. And I did everything I could to prepare him to testify. Most people automatically clean up their language when they get in court or even a lawyer’s office. But not him. So we practiced all his testimony—direct and cross —until he was as proper as a Cub Scout on awards night.
“But just two hours ago, when ‘Tricky’ Strickland started needling him on cross-exam, my plaintiff lost it. He stood up and said, ‘You son of a b****! Say that out in the hall and I’ll kick the sh** out of you!’
“Then he looked at me and said, ‘Sorry, Sandy.’ ”
“What did you do?” said Mike.
“I felt like crawling under the table,” said Sandy, “but I just kind of made a wry face and shook my head. It was involuntary. It’s not the kind of thing you can plan for.”
“Disagreeable behavior is bad enough,” said Nick Wheeler, “but it’s even worse when your client keeps on doing what got her into trouble in the first place.
“I was assigned by the bar association to represent Karen Lackster, the solo practitioner who got disbarred two years ago. She had represented Hilda, a woman with mental retardation, for 20 years. Before Hilda’s parents died, they had Lackster appointed as Hilda’s guardian and gave her a general power of attorney. It was Lackster’s job to look after Hilda’s interests, pay her bills and make sure she was being properly treated in the home where she lived.
“Lackster was well paid for her work—$10,000 a month. Then four years ago, Hilda got multiple sclerosis and started to go downhill. Lackster said Hilda wanted to write a will. Since she didn’t have any living relatives, she wanted to reward her lawyer—her ‘only friend’—for all her years of faithful service.”
“Don’t tell me Lackster wrote the will,” said Sandy.
“Nope,” said Nick. “She got Harry Rankle—the criminal defense lawyer across the hall from her—to write the will. It gave her a $250,000 bequest, and the remainder— about $25,000—went to Hilda’s church.”
“Excuse me,” said Angus. “Did Karen Lackster write the check that paid Harry Rankle for the will?”
“Of course,” said Nick. “She said it was part of her duties. Then two months later, Hilda died. And old Judge Foster ran the will through the probate mill without a second thought—probably didn’t even read it. Thirty days later, Karen Lackster had a quarter of a million dollars.
“But then one of the probate clerks told Judge Alice Redding about it, and she went into action. She said it was just as if Karen Lackster had written the will herself, and that her conduct was totally improper. Judge Redding got the will back into probate and informed the bar association’s disciplinary committee about Lackster’s conduct. Before you knew what was happening, I was assigned to help Lackster try to keep her license.”
“So what kind of client was she?” said Sandy.
“I’ll let you decide,” said Nick. “The first thing I asked her was whether she had renounced her $250,000 legacy. She said, ‘Why should I? I earned it. Besides, Hilda wanted me to have it.’ ”
“Did you try to persuade her to change her mind?” said Angus.
“Of course,” said Nick. “That was part of my job. Renouncing her legacy was her only opportunity to get a suspension from practice for six months or a year instead of losing her license permanently.”
“But what a combination of greed and stupidity,” said Sandy. “If she doesn’t understand why what she did is improper, she has no business practicing law.” “Funny,” said Nick. “That’s just what the grievance committee said in its opinion.”
“The important thing for lawyers to understand in all of this,” said Angus, “is that it’s the client’s case—not the lawyer’s. While it’s our job to keep our clients from shooting themselves in the foot—if we can—as long as what they want us to do isn’t illegal or unethical, it’s their decision, not ours.”
“I agree,” said Beth Golden. “But my trouble is with some of the more sophisticated clients who are smart enough to know they’ve got a fire but think they can put it out by themselves.
“Take the Rande brothers—Bobby and Billy,” said Beth. “They buy all kinds of businesses that are in trouble. They clean them up, straighten them out, put top-notch management in charge and then sell them for a handsome profit to big investors.
“A few years ago they bought Electro-Toys for a song. It was an innovative little company with some excellent products, but it was in serious economic trouble. The Rande brothers bought it, put it back on its feet and then put it up for sale.”
“Wait a minute,” said Mike Torrez. “Is this the case where the Rande brothers sold the same business to two different buyers at the same time and got caught in the middle of a huge lawsuit?”
“That’s the one,” said Beth.
“How could they do anything so stupid?” said Mike Torrez.
“By thinking they could solve their legal problem by themselves,” said Beth. “Instead of calling their lawyer to straighten it out, they made three very dumb telephone calls, destroyed an entire package of key documents by running them through the shredder, and then denied they had ever sold Electro-Toys to the second buyer, when that’s exactly what they did.”
“How’d you learn all this stuff?” said Mike Torrez.
“I was the lawyer they didn’t call until it was almost too late,” said Beth.
“But you were able to put out the fire?” said Mike Torrez.
“It was difficult,” said Beth. “The hardest part was that the Rande brothers had stuck themselves with their dishonest defense and claimed they had never signed the second contract, which made their good defense—the buyer’s fraudulent conduct—almost disappear. Their needless shenanigans nearly cost them $120 million.”
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“You’re right,” said Marvin Gardner. “What some clients do before they call the plumber can flood the whole house. But what sticks in my craw is how some of the captains of industry that I represent try to take over the entire trial.”
“Like what?” said Sandy Garcia.
“Like tell you which witnesses to call,” Marvin said. “How to cross-examine key witnesses. What arguments to make.
“Occasionally they’ll have a good suggestion, but most of their ideas are blatantly self-destructive. And you can’t just thank them and then forget about their ideas in trial. If you don’t do what they told you, they jump all over you. Some captains of industry are very high-maintenance clients.”
“So how do you deal with them?” said Sandy.
“If I knew the secret to that,” said Marvin, “I could stop taking so much antacid.”
Angus smiled. “It’s the basic secret of all persuasion,” he said. “Clients—even ‘captains of industry’—are people. They like their own ideas. So you don’t persuade them by telling them they’re wrong. In fact, you don’t tell them at all. You show. Play it out in your discussions. That way they see for themselves how their idea works, and so do you.”
Then Sandy said, “Thanks, everyone. I’m due back with my trucker in Judge Standwell’s court at 2 o’clock.”
The next afternoon, Sandy dropped by the office.
“I just had to tell you,” she said. “I got a $1.2 million verdict for my foul-mouthed trucker. The jury said it was ‘Tricky’ Strickland’s fault for pushing him so hard. Several said they would have jumped up a lot sooner than he did.
“Looks like a nasty lawyer can be worse than a dumb client.”
James W. McElhaney is the Baker and Hostetler Distinguished Scholar in Trial Practice at Case Western Reserve University School of Law in Cleveland and the Fred Parks Distinguished Lecturer in Trial Advocacy at South Texas College of Law in Houston. He is a senior editor and columnist for Litigation, the journal of the ABA Section of Litigation.