ZEALOUSNESS: SOMETHING TO PONDER
We have all heard that an attorney should zealously represent her clients. Rule 1.3 of the Model Rules of Professional Conduct provides that “A lawyer shall act with reasonable diligence and promptness in representing a client.” The comment states, in part, that “A lawyer must also act with commitment and dedication to the interests of the client and zeal in advocacy upon the client’s behalf.”
Several months ago, I mediated a dispute involving an assault and battery between two teenagers. The teenager who was assaulted (plaintiff) received a concussion and was beaten up pretty badly. But the plaintiff recovered completely – no lasting or devastating injuries – and is finishing school with a view of going on to college. The teenager who did the assaulting (defendant) was arrested and went through the juvenile justice system and has been ordered to reimburse plaintiff for the medical expenses incurred. I was told that up until this incident, the defendant was a model teenager, taking extra difficult courses in school and intending to go to college.
The plaintiff sued not only the individual defendant but also the corporate entity on whose premises this assault and battery had occurred. At the mediation, the plaintiff’s attorney was adamant that his client was entitled to a mid-six figure settlement from both the individual defendant and the corporate defendant. He would not listen to the notions that the real value in this case was that plaintiff had fully recovered and had not had a young person’s dreams dashed by a 30 second incident, and, that when viewed in this light, it was a minimal value case that should be settled. When the defense counsel raised the notion of whether two teenagers – plaintiff and defendant – should be subjected to the trauma of trial and undergo the judgmental process of a jury, the plaintiff’s attorney dismissed such notions claiming his teenage client could “handle it” and was in fact, “looking forward” to it. When counsel for the individual defendant explained that his client wanted to reimburse plaintiff for the medical expenses but simply did not have that amount of money and had no assets, plaintiff’s counsel would not acknowledge this reality. When the individual defendant offered what little amount of money he could honestly and earnestly be scrap together, plaintiff’s counsel dismissed the offer, almost out of hand. Instead, in his view, plaintiff’s counsel would obtain a judgment against the teenaged defendant that could be renewed again and again until the defendant completed college, started a career and thus had money with which to pay the judgment. The fact that this judgment would haunt a young person – who acted wrongly for 30 seconds but who, I was told, was otherwise a good kid – for the rest of life was of no concern to plaintiff’s attorney. He wanted justice and either the defendant paid the mid-six figure demanded in settlement – or a jury would award it. He also would not acknowledge that a judge and/or jury might see things differently.
With respect to the corporate defendant, plaintiff’s attorney was absolutely convinced it was somehow responsible for all of this, and should be held to pay for it. Again, plaintiff’s counsel would not consider defense counsel’s counter arguments or even acknowledge that a possibility exists that the corporate defendant may not be liable. . . that a court might just determine that it had acted “reasonably” under the circumstances. Instead, plaintiff’s counsel was adamant in his demand for a mid-six-figure settlement.
Well. . . the other day, the motion for summary judgment filed by the corporate defendant was granted. The “deep pocket” is out of the case. . . for now (will plaintiff appeal?) All plaintiff is left with is the individual defendant who has already offered to pay what little money can be scrapped together.
How will this case ultimately turn out? Probably not as well as it could have through a settlement at mediation.
I guess the morale of this tale is to never “be blinded by the light”. While every attorney has the highest duty to represent her client to the utmost, at the same time, she must acknowledge that contrary view points do exist and nothing but nothing is a “slam dunk.” Listen to the mediator. When a mediator discusses other or contrary points of view with a party and/or her counsel, there is most likely a “method to her madness”: it is not simply idle chatter.
. . . Just something to think about.
