The Georgia Trial Lawyers Association held its annual seminar on Friday, December 10, and it proved to be one of the most informative continuing legal education seminars I’ve ever attended.
You see, many of the presentations dealt with how to handle the lack of professionalism among opposing counsel that trial lawyers contend with every day. At one point, one of the speakers polled the audience, “Do you think that defense lawyers are more, less or equally professional than they were 10 years ago?” A few hands went up for more professional, a few more for equally professional but the bulk of the crowd affirmed what I have been feeling for a long time. The behavior of the defense bar is deteriorating.
Evidence is being hidden, depositions are being disrupted, insurance is being lied about, posturing and puffery are substituted for legal argument and memes about how trial lawyers are killing the economy are fed to the media nonstop.
One of the headliners at the GTLA seminar was Jim Butler, who spoke on discovery abuse. As the moderator who introduced him said, Jim needed no introduction. He is arguably the most successful trial lawyer in Georgia and maybe even the rest of the United States. He and his firm have obtained dozens of court orders over the years sanctioning defense lawyers for failing to turn over evidence. Sometimes the lawyer and his client would rather risk taking a hit than revealing something damning that could cause more widespread damage than the particular lawsuit at issue. With less critical information, the defense lawyer simply calculates how likely he will be able to keep the evidence under wraps. If he thinks he can conceal negative facts throughout the litigation, he won’t turn over evidence of even marginal importance. Either way, it literally pays for a defense attorney to lie.
My favorite presentation, however, goes to Mike Neff, who spoke on deposition abuse. Although the topic is inside baseball, non-lawyers can appreciate the problem. I take the deposition of a witness to learn what he has to say about the case, not what the defense attorney has to say. Suppose I’ve had to sue two doctors and a hospital in a particular case. Each will have his own attorney so that at every step of the litigation, it will be three defense attorneys against one of me. I don’t mind them trying to gang up on me, after all, that’s what they are paid for and what I am paid for. But taking a deposition can be harrowing. If any one of the defense attorneys decides that he is above the rules, the deposition becomes difficult and if more than one of them acts unprofessionally, the deposition might as well have been canceled.
My personal conclusion is that though I have arrows in my quiver to deal with the lack of professionalism, it’s a shame I have to shoot them so often.
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