July 05, 2019 practice points

Always Use Local Counsel

A guest columnist speaks on the importance of "Celebrating Atticus Finch"

By Kenneth P. Nolan

Kenneth P. Nolan’s “Sidebar” column in Litigation journal is a “must read” column for me, so I am thrilled that he agreed to be guest columnist in our continuing series “Celebrating Atticus Finch.” I’ll see you for the Book Review on the following page.

—Hon. Mark A. Drummond

Cleveland, I thought, was just like my beloved Brooklyn. Tough, shabby, and packed with working-class mugs who loved their sports. The Browns and Indians were just as horrible as my pathetic Mets and Jets. So, when my injury case was multidistricted to Cleveland federal court, I dismissed the suggestion of hiring local counsel. What for? These Clevelanders are my people. I grew up with them; I talk their language; they’ll love me. This was when I was young and invincible.

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Sometimes, I just can’t help myself. It was probably only my second conference before the face of the mild-mannered, placid judge contorted in rage, and he screamed: “I don’t care how you do it in New York, Mr. Nolan! We don’t do it that way here!” He then muttered something that sounded like a famous four-letter word. “Did he just call me that?” I asked my adversary, who shrugged. When the transcript arrived, I was disheartened to find no mention of the wicked word, which I had planned to frame on my office wall.

Hubris is alluring, especially for a Master of the Courtroom which I was, of course. Even after the good judge made his feelings about me and my hometown well known, I continued to litigate and try this case alone, never retaining a golfing buddy or high school classmate of His Honor. The body language of the judge improved, yet a kind word or smile never came my way. The jury, I knew, would reward my brilliance, my skill. Alas, my unconditional love was never returned by those who were born near Lake Erie. When the foreman of the jury announced the meager verdict, the judge finally smiled.

Shortly thereafter, I had a death case venued in Miami. Liability was conceded, damages only. “You gonna get local counsel?” a colleague inquired. Naw, Miami is New York City with good weather. Everyone is from New York except for those who escaped Castro. And they’re all Catholic, just like me. I don’t need any help.

It’s difficult to have a damages-only case dismissed. Even though I served every authorization and every page of every medical record, the magistrate judge, friendly with my adversary, somehow didn’t cotton to my alluring charm and intelligence. “Mr. Nolan, I ordered you to serve all the records of that doctor in Bogota. You still haven’t?” I insisted I served every paper the doctor provided along with a foot-high brief with myriad affidavits, exhibits, and other documents that attested to my honor and integrity. The judge failed to be enamored: “I warned you, Mr. Nolan, that I wanted those records provided. You deliberately failed to obey this Court’s order. The case is dismissed.” My career is over, I thought. I couldn’t eat or sleep until the magnanimous district court judge reconsidered and, reluctantly, allowed the case to proceed, albeit only after detailing all my imperfections on the record.

Eventually, I learned. When a plane tragically crashed in Lexington, Kentucky, I allowed my co-counsel, Kentucky native David Royse, to handle all public matters, especially in court. I kept my fat mouth shut. Not only because of my previous experiences, but because I knew I sounded and acted like someone from Mars. I could barely understand the slow, Southern accents, and their constant politeness and happy faces drove me nuts. Who expects such pleasantries all the time? No one in New York. In Kentucky, I learned, people are nice. They care about you. How strange.

David, an accomplished advocate and a big University of Kentucky fan, knew the judge, the clerks, the defense attorneys, everyone in Lexington. And he was friendly with all of them. David would argue an issue, and it sounded like he agreed with our adversaries until the end when he’d tell the judge, in a so-very-polite way, that they’re full of beans. And the judge would usually rule for us. No shouting, accusations, salty language. Just simple, straightforward argument that always referenced the UK basketball team or the last winner of the Kentucky Derby.

My role was to take the depositions, hire and prepare the experts, and handle all aspects of liability. We discussed strategy, and not only was David smart and practical, but he knew when to emphasize an issue and when to lie low. A bit different than the New York style of constant braying and tossing elbows.

I ultimately realized local counsel can navigate the courtrooms of places where you’re the one with the strange accent and manners.

I ultimately realized local counsel can navigate the courtrooms of places where you’re the one with the strange accent and manners. Where your aggressive behavior is viewed as impolite. Where college football and basketball teams are more popular than the Knicks or Yankees. Lawyers like David Royse, then of Stoll Keenon Ogden, now at Ransdell, Roach & Royse, are essential. Not only do they know if the judge is a UK or Louisville fan, but they can adjust tactics to appeal to jurors. What works in New York, Chicago, or Los Angeles, may backfire in Des Moines, Waco, or Baton Rouge.

So here’s my two cents: Always hire local counsel. Even though you attended a law school with ivy-covered walls, you don’t know everything. Sure, it’s important to master the law and the facts, but it helps to be acquainted with the culture, the judge, the clerks, the court officers. When I dine at one of the far-too-many hipster restaurants in Brooklyn, I ask those at the next table where they’re from. Most mention exotic places like Colorado or Michigan, but occasionally they’ll reply “Brooklyn, we’ve lived here 12 years.” Having only lived in Brooklyn, I smirk and view them as interlopers, outsiders. So, too, will you be viewed once your case lands in another jurisdiction. At best, the locals will be skeptical of you and your case. Having someone who attended kindergarten there will provide a patina of acceptance.

Local counsel is also essential in jury selection. No matter how expert the jury consultant, it’s the local gal who is familiar with the views, the quirks, the predilections of the residents. Those who know the local high school football scene are more knowledgeable than a million polls or surveys. Their experience in trying cases is often the difference between success and failure.

Finally, remember what the old bedraggled trial lawyer told me after I asked him why he attended every cocktail party or dinner where judges would be in attendance: “Kenny, I just don’t want to get hurt.”

 

Kenneth P. Nolan is a senior editor for Litigation journal.


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