By LCA Charter Senior Fellow Guy O. Kornblum
Introduction
Trial attorneys are obliged to be ethical, as that is our professional responsibility. We are obliged to be diplomatic because it is the proper conduct to show respect for the forum in which we are privileged to participate, and to promote efficiency and orderliness in the portrayal of contested matters.
There is nothing more satisfying than watching a skilled trial attorney do his or her work, laying foundations, examining with precision, maintaining control of the forum, carefully laying out a case consistent with the representations in the opening statement, earning the respect of the court and jury, and arguing the case persuasively for a positive result for the client. It is particularly satisfying if the attorney achieving all of this is YOU!
Trial work is a grand game of “Mother, May I.” It is done in what I refer to as the “Theater of the Real” where a real-world story is replayed for the jury. Done artfully, the skilled trial attorney does his or her work under the trial judge as the conductor so that the evidence, both testimonial and documentary, is developed in a logical and understandable fashion. This article is designed to outline the ethical obligations we have as trial attorneys, but also to supplement that with guidelines which further the principles of trial diplomacy. These principles flow not only from the ethical rules but also our notions of propriety, which affect how we conduct ourselves as trial attorneys.[1]
Advertising
Despite the rules permitting advertising, most trial attorneys get their cases through either referrals or personal contact or reputation. Still, many of us see the need to advertise to “get the word out” about our services and availability.
The first rule, of course, is that whatever we say must be truthful. Our advertisements cannot mislead or misstate. That is, if we are certified in Civil Trial Law by the National Board of Trial Advocacy, we can state that in our advertisements or put that on our letterhead and business cards. However, we cannot state that it means that we have “superior” credentials, are “exceptionally qualified,” or have “unquestioned credibility.” That is not what certification means. We can explain to a client that we have made an extensive application, have provided judges and attorneys as references who have vouched for us, and have had an inquiry made about us by an independent board which has found us to meet the requirements for certification. However, any representations beyond that would be misleading. We certainly cannot say that certification “guarantees” results, or that judges or opposing counsel are going to give our presentations any more credibility or consideration simply because we are certified.
What about advertising our successes? Can we list our “victories” without talking about our “defeats” or the cases we have settled for less than we originally anticipated? Is it appropriate to provide a caveat either before or after this “list” that, “Not every case is ‘won’ but we have had these results in the cases listed”? It is my view that there is nothing wrong with listing results, but it is inappropriate to portray them as “victories” or “great results” or characterize them in any way that is misleading. While it may not be required, I believe some type of statement could accompany this “list” which explains what it is and advises the public or prospective client that this does not represent a result to be achieved in a particular future case or their case.[2]
Interviewing and Confirming Representation of the Client
The initial interview of the client means that there is a high degree of interest by the client and the attorney in representation. The attorney has decisions to make. Do I try to confirm representation at this time? Do I want some time to research and investigate the prospective client’s case before agreeing to represent this client? What are my obligations during this period? Must I protect the client’s interests (for example, if a statute is about to run)? If so, how do I do that, and what is my obligation if I agree to advise or file a complaint on behalf of the client even though I am not certain I am going to take the case? How far can I go in investigating the case, and what are my assurances that the client is not going to go elsewhere to “shop” the case to obtain a lower fee?
These questions present a number of issues. First, unless you definitely tell the client you are not interested and clearly reject the case (followed by a confirming letter or email), there can be obligations even though no formal written Representation Agreement has been agreed to by the client and counsel. For example, if you take authorizations for release of police reports or medical records and agree to “look into the case,” you likely have the same obligations as if you formally signed up the client. That is, at that point, you assume the role of counsel, provided the client agrees to your conducting your investigation, and has not engaged other counsel.[3] So if you reject the case, clearly do so to avoid any ambiguity regarding representation.
Bringing the Lawsuit
Once the attorney-client relationship has been created, the attorney must act with the utmost competence and diligence in bringing the lawsuit. In doing so, the attorney must ensure that the lawsuit he or she is filing is not “frivolous,” i.e., the suit has support under existing law or can be supported by an argument for an extension, modification, or reversal of existing law.[4] Failure to do so subjects the attorney to discipline and may even lead to sanctions under Rule 11 of the Federal Rules of Civil Procedure or an equivalent state rule.
Disclosures in Discovery
As with all other phases of litigation, discovery is rife with ethical issues. One principal issue deals with what information, if any, should or must be disclosed to the opposing side in a dispute. In this regard, several broad ethical standards apply. First, an attorney has an explicit duty not to suppress any evidence he or she has a legal obligation to produce. Second, the attorney must make reasonable efforts to comply with a proper discovery request made by the opposing party.[5] Taken together, these two principles stand for the proposition that when an attorney receives a valid discovery request obliging production consistent with that request, that should be done. Failure to do so subjects an attorney to discipline.
It must be said, however, that we, as trial attorneys, are under no obligation to produce evidence harmful to our clients absent the appropriate discovery request or subpoena. For instance, if the request for documents or other information is broadly worded and otherwise lacks specificity, the legal obligation to produce the information may not be triggered, and the attorney would then be ethically obligated to withhold damaging information from the opposing side.[6]
Taking and Defending Depositions
Today, attorneys often spend more time in depositions than trial. The deposition is a key tool in the trial attorney’s kit for developing evidence, assessing witness impression, and evaluating the case. Unfortunately, depositions have, in many instances, become mini “battlefields” where prolonged proceedings often unnecessarily distract from, rather than advance, the cause of bringing a case to resolution.
Depositions have rules. Depositions should proceed as if the testimony was being taken in open court. That is, in trial, an attorney is not permitted to (a) interrupt the examination with objections designed to help the witness testify, (b) make speeches at will, (c) speak directly to opposing counsel in an effort to intimidate or distract the examining attorney from the line of questioning being pursued, and (d) have conferences at will with a client or witness to discuss the “proper” answers to questions. Why should these not apply to depositions as well?
It is my experience that counsel defending a deposition often view their primary role as a “coach.” This approach results in using tactics that attempt to disrupt the deposition process based on the following: (1) there is so much dialogue and colloquy that it is difficult to put a question and answer together, (2) objections unnecessarily disrupt the flow of questions, (3) objections and monologues are used to put words in a witness’ mouth or to suggest answers, (4) objections are also used to suggest to a witness that the question should not be answered because “the witness” does not understand it.
Thus, when counsel attends a deposition, he or she should be prepared to cite cases to the offending counsel to avoid having to discontinue the deposition, request assistance from the court, or have a magistrate or commissioner attend so that any issues can be handled right then and there.
One solution that has been suggested in case law is for the deposition to be temporarily adjourned and a telephone call made to the court magistrate or commissioner to work out the issue or objectionable conduct. Several cases, including the ones cited below, have suggested this. This is particularly appropriate if the deposition is being taken out of town and it would be expensive to return after a court rules on the questions.
A particularly bothersome practice is “instructing” a witness not to answer a question when the issue is other than the disclosure of a privilege, or interrupting the deposition with witness conferences with his or her counsel. That is not permitted, as is discussed below.
Depositions: Case Law
Fortunately, there has been some attention given to the topic of witness “instruction” by the courts as abusive and unethical conduct has been brought to the attention of judges. One fairly early case on this topic is Hall v. Clifton Precision 150 F.R.D. 525 (E.D. Pa., 1993), which addressed these issues. In Hall, plaintiff’s counsel interrupted the deposition of his client to privately confer with the client and to review a document before the client answered the deposing attorney’s questions. The deposition was thereafter adjourned, and the parties went to the court to discuss the issue.[7] After hearing arguments and considering briefs from both sides, the court ruled that the plaintiff attorney’s actions were not supported by statutory or case law. The court noted that “[a] deposition is meant to be a question-and-answer conversation between the deposing attorney and the witness. There is no proper need for the witness's own attorney to act as an intermediary, interpreting questions, deciding which questions the witness should answer, and helping the witness to formulate answers.”[8]
As a result of Hall, several courts which have issued local rules for deposition conduct.
Depositions: The Rules that Have Emerged
Here are the rules for depositions as I see it:
- Rule 1. Objections to evidence (i.e., questions) shall be stated concisely and in a non-argumentative and non-suggestive (i.e., without suggesting what the answer should be) manner.[9] That is, objections may not be used to coach a witness or suggest an answer to a witness.[10]
- Rule 2. A party may instruct a deponent not to answer only when necessary (i) to preserve a privilege, (ii) to enforce a limitation on evidence directed by the court, or (iii) to present a motion under paragraph (3) of Rule 30(d) of the Federal Rules of Civil Procedure should the examination be “conducted in bad faith or in such a manner as unreasonably to annoy, embarrass, or oppress the deponent or party.”
- Rule 3. Once the deposition begins, there can be no coaching of the witness through “off-the-record” conferencing during breaks or otherwise, whether the conference is requested by the witness or the attorneys. “These considerations apply also to conferences initiated by the witness, as opposed to the witness’ attorney. To allow private conferences initiated by the witness would be to allow the witness to listen to the question, ask his or her attorney for the answer, and then parrot the attorney’s response. . . . [T]he witness can ask the deposing attorney to clarify or further explain the question.”[11]
- Rule 4. If there are suspected attempts to coach the witness during breaks, inquiry by counsel conducting the deposition regarding what the witness was told by the attorney is not privileged.[12]
- Rule 5. It is not appropriate for a witness to confer with his or her counsel about documents shown the witness and about which inquiry is made at the deposition. If there are questions about the document from the witness, they should be directed to the questioning attorney, not to counsel representing the witness.[13]
- Rule 6. A witness is entitled to a private conference with his or her attorney only if there is a question about a privilege and whether such should be asserted.[14]
- Rule 7. It is not a proper objection for counsel to say: “I don’t understand the question; therefore the witness does not understand the question” [and should not answer or there be an instruction not to answer].[15] As a corollary to this rule, it is not proper for counsel for the witness to interrupt the questioning by asking after the question is asked, and before an answer is given: “Do you understand the question?” as if to suggest to the witness that he or she should say, “yes” because there is some hidden flaw in the question or the witness needs to be coached with an answer. Questions regarding clarification should be generated by the witness him or herself because, apart from counsel’s coaching, the question is not understood by the witness.
Motions and Briefs
An attorney owes a duty of candor to the court. This duty exists at the time the complaint is initially filed and continues throughout the time motions and briefs are written and filed with the court. The attorney must not mislead the judge or judicial officer by making a false statement of fact or law, or intentionally misquoting the language of a book, statute or decision, or cite authority that the attorney knows is invalid.
The duty, in short, requires attorneys to be candid with the court about the law that is applicable to the case, even if the relevant law is directly adverse to the client’s position and even if the opposing counsel has not cited it to support his or her own case. Although this requirement may seem at odds with attorney’s duty of zealous representation, it is not, as the attorney need not accept the adverse law and is free to argue that the court modify or overrule the law.
Trying the Case
a. Statements and Representations to the Court
Much like the duty attached to the writing and filing of motions and briefs, an attorney must be candid in his or her representations to the court. In this vein, an attorney must refrain from making false statements to the court and must correct any previously made false statements. Generally speaking, a statement or representation will be considered false if the attorney knows it to be false or where the attorney lacks a reasonable basis for his or her assertion.[16]
b. Stipulated Matters
Once a stipulation is reached, counsel and the client are bound by it. No witness is permitted to be examined regarding a fact that is contrary to the stipulation. Unless a party seeks relief from the stipulation for good reason, that stipulation is binding on the parties and their counsel and no argument can be made to the contrary.
c. Voir Dire
In federal court, the court will conduct most of the voir dire. Counsel may submit questions in writing, or the court may allow very limited examination by counsel. That normally occurs if there is a challenge for cause, and such may occur out of the presence of the other jurors.
In California, the Code of Civil Procedure sets for the limitations on counsel for voir dire:
To select a fair and impartial jury in civil jury trials, the trial judge shall examine the prospective jurors. Upon completion of the judge's initial examination, counsel for each party shall have the right to examine, by oral and direct questioning, any of the prospective jurors in order to enable counsel to intelligently exercise both peremptory challenges and challenges for cause. During any examination conducted by counsel for the parties, the trial judge should permit liberal and probing examination calculated to discover bias or prejudice with regard to the circumstances of the particular case. The fact that a topic has been included in the judge's examination should not preclude additional nonrepetitive or nonduplicative questioning in the same area by counsel.
The scope of the examination conducted by counsel shall be within reasonable limits prescribed by the trial judge in the judge's sound discretion. In exercising his or her sound discretion as to the form and subject matter of voir dire questions, the trial judge should consider, among other criteria, any unique or complex elements, legal or factual, in the case and the individual responses or conduct of jurors which may evince attitudes inconsistent with suitability to serve as a fair and impartial juror in the particular case. Specific unreasonable or arbitrary time limits shall not be imposed.
The trial judge should permit counsel to conduct voir dire examination without requiring prior submission of the questions unless a particular counsel engages in improper questioning. For purposes of this section, an "improper question" is any question which, as its dominant purpose, attempts to precondition the prospective jurors to a particular result, indoctrinate the jury, or question the prospective jurors concerning the pleadings or the applicable law. A court should not arbitrarily or unreasonably refuse to submit reasonable written questionnaires, the contents of which are determined by the court in its sound discretion, when requested by counsel.
In civil cases, the court may, upon stipulation by counsel for all the parties appearing in the action, permit counsel to examine the prospective jurors outside a judge's presence.[17]
Even in state court, the judge should maintain control over the process so it focuses on its true process – to allow counsel to make decisions regarding the best jurors for a client’s case.
d. Opening Statement
The opening statement is the time when the attorney presents the theme and theory of the case as it will develop through admissible evidence. This is when the case story is presented to the jury. The basic rule is that counsel should not argue the case, nor should he or she state facts without a good faith belief that they will be proved through admissible evidence.[18]
Accordingly, an attorney should neither refer to material that will not be supported by the admissible evidence nor make arguments as to what the evidence all means. Further, attorneys must not state personal opinions about the case during the opening statement.[19]
e. Examining Witnesses
In examining witnesses, an attorney should refrain from any line of questioning intended to embarrass or harass a witness if such has no bearing on the truthfulness of the testimony. Moreover, attorneys should be aware that a court will do whatever it can to protect a witness from undue harassment or embarrassment at the hands of the cross-examining attorney.[20]
The basic rules here are:
- Counsel should not argue with the witness.
- Sarcasm is not permitted.
- Questions should not be asked that misstate or mischaracterize the evidence or testimony of any witness, including the witness being examined.
- Counsel shall not approach the witness stand unless given permission by the court to do so, for example, when showing the witness an exhibit. That is, counsel cannot use physical intimidation in examining any witness.
In short, counsel’s overall demeanor should be professional, respectful and appropriate at all times, even in the heat of an intense cross-examination.
f. Opposing Counsel
Despite the contentiousness involved in litigation, attorneys must remain civil and dignified in their treatment of all participants, including opposing counsel. Generally speaking, while an attorney is free to argue that opposing counsel’s statements and arguments lack merit, the attorney must not become the schoolyard bully. While it should go without saying, attorneys must not engage in or threaten physical force, or engage in direct argument with one another. At all times, counsel should address the court and treat the forum with professionalism and respect. Arguments can become passionate and heated, but not personal.
Indeed, I counsel my attorneys to not look at opposing counsel, but always at the court, the jury or witness, whoever is being addressed. Personal issues and asides are not part of the courtroom process.
g. Objections
No “speaking objections” are permitted. That is, the basis of the objection should be succinctly stated, such as “hearsay” or “lacks foundation,” without argument so that the court knows such has been made. The court will consider the objection and if argument is needed, there will be a “side bar” at which time counsel may explain, in sotto voce, the basis for the objection. All efforts should be made to prevent the jury from overhearing any argument or discussion on the matter.
If the court anticipates a lengthy argument over the objection, it may retire with counsel to chambers. It is best to have more arguments on more substantive objections reported by the court reporter for the record on appeal or for later use in the trial.
h. Misconduct
While lawyers must remain diligent in their representation of their clients, they must refrain from acts of misconduct. With respect to trying a case, lawyers must not use chicanery or trickery as tools in their zealous representation of their client(s), as such actions are grounds for discipline. For instance, misconduct is clear where a lawyer refers to inadmissible evidence, asserts his or her personal opinions or knowledge regarding the matter, or threatens a witness or opposing counsel with force or legal repercussions (such as threatening criminal prosecution).[21]
i. Argument
In closing argument, a lawyer’s duty is to persuade the trier of fact by arguing his or her theory of the case as it appears through admitted evidence. It has been noted that a lawyer “is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.”[22] The wide latitude given during argument, however, is not unlimited. Namely, the lawyer cannot reference any matter not supported by admissible evidence. For example, the lawyer must not argue facts that were ruled inadmissible or were not admitted, or misstate testimony by a witness. Similarly, a lawyer may not use closing argument to expound upon his or her personal beliefs as to the veracity of a witness, the culpability of a defendant, or personal opinions regarding the justness of the cause.[23]
Repeated instances of the above-mentioned misconduct can result in the reversal of a judgment. In Love v. Wolf, 226 Cal. App. 2d 378 (1964), plaintiff’s attorney in a medical malpractice case made a series of inappropriate comments and assertions towards opposing counsel and the defendant drug manufacturer. The attorney’s misconduct included such acts as referring to the drug manufacturer's earnings, making false references to the profits made on those earnings, failing to keep promises to prove facts suggested by innuendo, verbally abusing opposing counsel, suggesting opposing counsel suborned perjury, and telling opposing counsel to “shut up” when they tried to make objections.[24] Though defense counsel objected to some misconduct and requested admonitions, the judge inexplicably made very little effort to control the courtroom and not all misconduct was met with an objection.[25]
On appeal, Plaintiff contended that defense counsel did not always object and request admonitions, to which the court stated: “As any experienced trial lawyer knows, multiple objections have a tendency to alienate a jury's good will; particularly when, as in this case, the judge fails to rule on the objections made. And here many instances of misconduct were objected to. As for curing error by admonishing a jury, while this may be possible when error is isolated and unemphasized, an attempt to rectify repeated and resounding misconduct by admonition is, as counsel here has expressed it, like trying to unring a bell.”[26] The Court of Appeal concluded that the wealth of “intentional, blatant, and continuous” misconduct in the case was prejudicial and reversed the judgment.[27]
A Final Comment
All in all, there are high expectations of a trial attorney. It is my experience that high standards and adherence to the rules earn respect. Advocacy is also highly respected, but it must be effective advocacy. Diplomacy, ethics and good manners make for effective advocacy. Falling below the basic standards lessens the chance of prevailing for a client and of performing at acceptable levels of professionalism.[28]
by: Guy O. Kornblum, Certified in Civil Trial Law, National Board of Trial Advocacy; Life Member, Multi-Million Dollar Advocates Forum; Charter and Senior Fellow, Litigation Counsel of America. Principal, Guy O. Kornblum, A Professional Law Corporation, with offices in San Francisco and San Ramon, California. Mr. Kornblum received his J.D. from the University of California, Hastings College of the Law, in 1966 and his A.B. from Indiana University in 1961, after which he served as an officer in the U.S. Army before returning to law school.
[1] The ethical rules are taken from the ABA Model Rules of Professional Conduct. However, I have also drawn on the provisions of the California Rules of Professional Conduct, and various State rules which I have identified. I have also used the Federal Rules of Civil Procedure, California’s Code of Civil Procedure and some local rules from both Federal District and state trial courts for both reference and assistance in developing these views of how a trial attorney should be guided in the practice.
[2] For example, there could be the following at the end of the “list”: “The following cases were handled by our firm as the lead trial counsel. They are results that have been achieved in those particular cases. They in no way indicate that a similar result can be achieved in your case because the facts of circumstances of these cases are not the same. However, we believe they do represent a fair sampling of those cases in which we have achieved a positive result for our client.”
[3] Of course, before going forward, you should confirm that the client has not engaged another attorney to represent the client in the matter as to which you have been consulted.
[4] Cal. Rules of Pro. Conduct, R. 3-200 (2020); Model Rules of Pro. Conduct R. 3.1 (Am. Bar Ass'n 2020).
[5] Model Rules of Pro. Conduct, R. 3.4 (Am. Bar Ass'n 2020).
[6] See generally, Cal. Prac. Guide: Pro. Resp., The Rutter Group, 8:232-233 (the rules governing discovery in Federal Court in both civil and criminal cases require disclosure of information despite a specific request). See Fed. R. Civ. P. 26(a) (in criminal cases, prosecuting attorneys must disclose any and all exculpatory evidence to defense counsel, and defense counsel must disclose any and all instrumentalities of a crime in his or her possession to the prosecution). See generally, Brady v. Maryland 373 U.S. 83 (1963); People v. Meredith 29 Cal.3d 682 (1981).
[7] Id. at 526.
[8] Id. at 528.
[9] Fed. R. Civ. P. 30(d)(1).
[10] See Hall v. Clifton Precision, 150 F.R.D. 525, 530 (“There can be no ‘on the record witness coaching’ through suggestive objections”).
[11] Hall v. Clifton Precision, supra, 150 F.R.D. at 528-529 (“These rules also apply during recesses. Once the deposition has begun, the preparation period is over and the deposing attorney is entitled to pursue the chosen line of inquiry without interjection by the witness’ counsel. Private conferences are barred during the deposition, and the fortuitous occurrence of a coffee break, lunch break, or evening recess is no reason to change the rules.”).
[12] Id. at 529, n.7.
[13] Id. at 529.
[14] Id.
[15] Id.
[16] Model Rules of Pro. Conduct R. 3.3 (Am. Bar Ass'n 2020).
[17] Cal. Code Civ. Proc. 222.5. Cal. Rules of Court 228 provides:
This rule applies to all civil jury trials. To select a fair and impartial jury, the trial judge shall examine the prospective jurors orally, or by written questionnaire, or by both methods. The Juror Questionnaire for Civil Cases (Judicial Council form MC-001) may be used. Upon completion of the initial examination, the trial judge shall permit counsel for each party who so requests to submit additional questions that the judge shall put to the jurors. Upon request of counsel, the trial judge shall permit counsel to supplement the judge's examination by oral and direct questioning of any of the prospective jurors. The scope of the additional questions or supplemental examination shall be within reasonable limits prescribed by the trial judge in the judge’s sound discretion. The court may, upon stipulation by counsel for all parties appearing in the action, permit counsel to examine the prospective jurors outside a judge's presence.
[18] Model Rules of Pro. Conduct R. 3.4(e) (Am. Bar Ass'n 2020).
[19] See generally, 4-81 California Criminal Defense Practice §81.22 (Matthew Bender & Company, Inc., 2005).
[20] Cal. Evid. Code §765 (2020).
[21] If opposing counsel engages in misconduct, a prompt and timely objection must be made and an “admonition” that the jury disregard the statements of counsel that are the subject should be made. Horn v. Atchison, T. & S. F. R. Co., 61 Cal. 2d 602, 610 (1964). The court then must decide whether the conduct is not proper, and if so, should admonish the jury to disregard the statements.
[22] People v. Hill (1998) 17 Cal.4th 800, 819 (internal citations omitted).
[23] See generally, Model Rules of Pro. Conduct R. 3.4 (Am. Bar Ass'n 2020); Cal. Prac. Guide: Pro. Resp., The Rutter Group, 8:276-277.
[24] Id. at 386.
[25] Id.
[26] Id. at 392.
[27] Id. at 393-4.
[28] See Model Rules of Pro. Conduct R. 3.1 et seq. (re the attorney’s role as an advocate) (Am. Bar Ass'n 2020). See Cal. Rules of Pro. Conduct, R. 5-100 et seq. (re “Advocacy and Representation”) (2020).
