Ethics: Can You Agree Not to Sue the Defendant Again?

It keeps coming up. Every once in awhile you get ready to settle a case and all of a sudden, when the release comes up, the defendant wants to include something that says you (as the attorney) can't sue the defendant again for some other client in the future. Can you do that?

We first saw this issue arise nearly 20 years ago and it still comes up. Again and again. Texas attorney Steve Gardner gave a great presentation in Portland, Oregon, at the 2008 NACA-NCLC Consumer Rights Litigation Conference, on this (and other) ethical issues.

What surprises us is that this issue keeps coming up again and again.

The answer isn't that tough. But apparently it's hard to accept and it's a very common problem.

Steve says it best. "Assuming you don't have such another plaintiff, can you make this agreement? Oh, hell, no."

Steve's presentation pointed out, with specific citations, that it is unethical for an attorney to agree to limit his/her future representation of victims of the same defendant. It's unethical to make such an agreement. More importantly, it's unethical to even propose such an offer.

It's really very simple. They can't ask. You can't agree.

As Steve points out, the basic concept is that "a client has the right to choose the best lawyer for the job and by taking yourself out of the mix, you are potentially denying a prospetitve, but unknown, client that option."

One attorney does not have the right to ask another attorney to agree to a settlement that requires their opposing counsel to agree in advance not to take on another case against the same defendant. And the second attorney does not have the right to agree to it either.

This kind of settlement means you are taking money now to give up your right to practice law for a future unknown client who may need your help. It's just plain wrong.

Surprisingly, though, it still keeps coming up. Time and again, defense attorneys try to get plaintiff's attorneys to agree to it. Why? Because their client wants to take Mickey Mantle out of the game. Mickey Mantle? That's you. You know, the only competent attorney who knows the defendant and how they play the game.

So, when your opposing counsel wants to offer you a very good settlement for your client and then adds that they want to make sure you aren't going to represent someone else against their client? Just say no.

You can't do it. As Steve Garner says, "it's just that simple."

Ron Burdge
www.TheLawCoach.com
Helping Consumer Law Attorneys Help Consumers. Every day since 1978.

What it Takes to Be a Great Trial Lawyer

One of the remarkable advantages of being a member of a multitude and variety of professional organizations is that you can be exposed to a broad spectrum of people who have great ideas. That naturally leads to a better understanding of people.

As a trial attorney, that only helps us do our job better because understanding people is the key to human interaction, which is the heart of what a trial attorney deals with everyday.

At the same time, what it takes to be a great trial lawyer is more than understanding human interaction, although just knowing that much can go a long way toward professional success. Understanding the mechanics of the legal process fulfills the equation of being a great lawyer.


That’s a lesson learned, in a roundabout way, from Nashville attorney John Day. A remarkable trial attorney and gifted speaker, his blog on all things related to Tort Law (quite aptly titled Day On Torts) is worth a regular read, no matter what area of law you may practice. He knows his stuff.


Day has written a series of articles collectively titled "What it Takes to Be a Great Trial Lawyer" and the article is terrific. I won’t spoil the fun of reading it (you can find the entire series on the web and also in the Fall 2008 Ohio Trial published by the Ohio Association for Justice), but here are the 19 points that make up Day's List:


1. A great trial lawyer knows the substantive law applicable to the cases the lawyer evaluates, accepts, settles and tries.
2. A great trial lawyer has a solid knowledge of the law of evidence.
3. A great trial lawyer has a solid knowledge of the law of civil procedure.
4. A great trial lawyer takes time to think.
5. A great trial lawyer maintains a reasonable caseload.
6. A great trial lawyer does not cheat.
7. A great trial lawyer learns the facts.
8. A great trial lawyer understands the importance of depositions.
9. A great trial lawyer has the ability to pull the trigger.
10. A great trial lawyer has the ability to organize.
11. A great trial lawyer understands the need to be true to one’s self.
12. A great trial lawyer has the courage to tell the client the truth.
13. A great trial lawyer has the ability and willingness to undertake (and share with the client) a cost-benefit analysis throughout the litigation.
14. A great trial lawyer has a passion for the work.
15. A great trial lawyer has an understanding of the human condition and what it takes to motivate jurors to action.
16. A great trial lawyer has an appreciation for the discretion vested in the trial judge.
17. A great trial lawyer has the willingness and ability to delegate.
18. A great trial lawyer is blessed with "luck."
19. A great trial lawyer knows that he or she is only as good as the next verdict.


His list is, as he has said, "what I must do to become the lawyer I want to be."

There is not a single thing on Day's list that should be skipped by anyone wanting to master the craft of being a trial lawyer. And there certainly isn't much to add either. Mastering Day's list can take a lifetime, but what a life's time it would be.

Ron Burdge
http://www.TheLawCoach.com/

Helping Trial Lawyers Help People Since 1978

Reptiles in the Jury Box

There's a new book coming out in May or June 2009 that you'll want to read. It's about reptilian thinking, and more, sitting in the jury box.

Don Keenan and David Ball have both contributed great thoughts to the cause of the lawyer's craft. Now they have honed their skills on understanding and coping with the subconscious process that works inside the mind of jurors.

Taking cues from such diverse sources as Karl Rove's tactics and teachings, Claude Rapaille's marketing concepts, Freud's analysis of the subconscious, and the strategies of New York's Moe Levine, these trial masters have penned a book titled "Reptile: The 2009 Manual of the Plaintiff's Revolution".

It promises to be a new approach and a new way of thinking to deal with the issues that tort reform (or, perhaps more accurately, but controversially, referred to as tort "deform"). Of course Barnes & Noble is taking preorders, along with Balloon Press.

Keenan is no trial slouch, either. He's racked up 142 million dollar + verdicts and settlements, a remarkable track record. Among his works, Ball has written what many people strongly believe to be the Bible on recovering damages, "David Ball on Damages." These are two powerhouse minds.

From everything said so far about it, "Reptile" promises to teach a great many lessons about the real workings inside the Jury Box, something that any good lawyer needs to understand more about.

This promises to be a book to get, read, then study hard.

Ron Burdge
www.TheLawCoach.com
Helping Lawyers Help People