May 20, 2019 practice points

Celebrating Atticus Finch: Hiring Local Counsel

Fit the cross to the witness; the witness to the cross

By Hon. Mark A. Drummond

There is an old adage that goes something like this: regardless of the actual translation of any Latin phrase that appears over any door to any courthouse in the United States, what those words actually say are, “Hire Local Counsel.”

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Writing this column in an office just a few hundred yards away from the Mississippi River, I am smack dab in the middle of what is called “fly-over country.” From time to time, I was asked to be local counsel for someone from a big firm from a big city.

For the upcoming year, the ABA Section of Litigation is focusing on solo and small firm lawyers. The chair of the Section of Litigation, Palmer Gene Vance II, Lexington, KY, put it this way to the leadership members at the fall meeting in Louisville, Kentucky: “As a lawyer practicing in Lexington, Kentucky, I am keenly aware that solo and small firm lawyers are the backbone of our profession, comprising more than half of all practicing lawyers. One of the Section’s special initiatives this year focuses on solo and small firm litigators, offering resources designed to help them develop their practices, meet their professional goals, and connect with friends and mentors in the legal community.”

Accordingly, for the next year Practice Points will focus on stories about lawyers in “fly-over country” who work by themselves or in smaller firms. The theme will be Celebrating Atticus Finch. Our first story centers on using local counsel for local knowledge plus actually handling parts of the trial.

“I had a case in Oklahoma where I deferred to local counsel for cross-examination,” recalls Dennis P. “Denny” Rawlinson, Portland, OR, member of the ABA’s Section of Litigation Council. “My local counsel, Graydon “Dean” Luthey Jr. of Tulsa had the Oklahoma ‘twang,’ and the cross of an Oklahoma multimillionaire minister needed to be, in my judgment, done by one of their own—not by some plain-talking lawyer from Oregon. The jury seemed to agree.”

“Designing the cross with Dean was a joyful collaboration,” adds Rawlinson. It went something like this:

‘Now Reverend, you know the golden rule don’t ya?’
‘Now it’s something like, “Do unto others as you would have them do unto you?’
‘Now as a minister you were practicin’ the golden rule?’
‘Was it when you spent 100 million dollars for a big game ranch for yourself?’
‘You did not have your 50 percent partner’s permission for that, did ya?’
‘You did not have permission of the board for that, did ya?’
‘You just directed your CFO to transfer the funds?’
‘…and when he wouldn’t, you threatened to fire him…didn’t ya?
‘Can you provide me with the paperwork showing your debt to the company?’
‘Was there a promissory note?’
‘Was there contract?’
‘An IOU note?’
‘You didn’t plan to pay it back, did ya?’
‘Explain to me…as a minister…how that was practicin’ the golden rule?’”

Paraphrasing Hamlet, it may be wise to “fit the witness to the cross, the cross to the witness,” by assigning local counsel the task of crossing local witnesses. The jury may find that more palatable, especially if the cross needs to be strident.

Of course, the most natural use of local counsel arises during jury selection. Local knowledge of jurors, their attitudes, and where they work or play is crucial. Nothing can be more embarrassing for out-of-town counsel than to mispronounce the name of a street, school, business, or popular community event in front of the venire, especially if you are trying a case against local counsel. In that case, deferring the entire task of selecting the jury to your local counsel may be the wisest route to go.

Over a decade ago, a very accomplished trial attorney from a large city came to town and tried a medical malpractice case for the plaintiff. Once the jury was selected, several local attorneys were overheard at the coffee shop saying things like, “I can’t believe they left John Smith [not his real name] on the jury.” “John” was a well-known business person in the community and was also well known for being very, very conservative. I have forgotten if he was the foreperson, but any local attorney would have told you that he had the potential to be the foreperson and, if not, certainly a leader in the jury room.

Now, the out-of-town attorney was successful in getting a sizable verdict out of this jury. It was a good result for the client and one of the highest, if not the highest, verdict to date in the county. However, several local attorneys knew some of the jurors and found out that 11 of the 12 were willing to go much higher. “John” said he was willing to go only so far, and that ended up being the verdict.

Finally, an added benefit of teaming with local counsel goes beyond just winning the case. You hopefully end up with a satisfied client, but you may also get stories that will be retold for a lifetime. “Dean had never seen mountains in person,” begins Rawlinson. “So he enjoyed seeing ours in Oregon where he remarked that they had nothing like that in Oklahoma, the state being as flat as a pancake. One night while in Oklahoma, sitting with Dean, I looked off in the distance and noticed a rise and remarked that it looked like Oklahoma did have a mountain out there. With his characteristic drawl and an actor’s timing, he responded, ‘Denny, that’s not a mountain, that’s not even a hill…that, my friend, is a sanitary landfill.’”

 

Hon. Mark A. Drummond is an associate editor for Litigation News.


Copyright © 2019, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).