April 01, 2013

Sidebar: Courage

Hubris infects the legal profession, but a lack of courage is more pervasive.

Kenneth P. Nolan

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Joe Paterno was a hero. A Brooklyn boy, a family man, and a philanthropist, Joe was an intelligent, successful coach who for decades led a football program in which team was paramount, individual glory secondary. No players’ names adorned the simple blue-and-white uniforms. At my wedding in 1973, Father Vesey spoke of Joe, who had recently turned down National Football League riches and prestige, as an example of mission being more important than money. Standing at the altar in my tux, I vowed to follow that ideal and pursue a life of good works rather than a co-op overlooking Central Park. Oh well.

Other coaches cheated—slipped their stars cash or cars, used them to fill the stadium, garner the TV money, win the bowl game, and then tossed them aside like an empty Dunkin’ Donuts cup. Not Joe. At the University of Southern California, Heisman Trophy winner Matt Leinart fulfilled his academic requirements by taking ballroom dancing. At North Carolina, athletes were steered to sympathetic professors who made sure they passed. Even Harvard athletes have left school implicated in a cheating scandal. Not Penn State.

As I aged and grew even more cynical, I was rarely surprised when politicians lied, when athletes took steroids, when lawyers stole. My heroes were no longer those whose names were celebrated, but clients who radiated goodness and integrity in the face of tragedy and despair— ordinary mugs who rode the subway, dined at KFC, and watched ESPN. No one knew their names, no one tweeted their every move, no one memorialized their simple acts of selflessness.

Yet, there was still Joe. Old, yet still honorable—raising funds for a library, a spiritual center. Then came the revelations of child abuse committed by a longtime fellow coach. Covered up for the good of the program, of Penn State, of college football. And now even the statue of Joe running on the field in shirt, tie, and unfashionable glasses has been ripped down, hidden in some dark warehouse. All deserved.



Hubris Versus Courage


Hubris infects much of the legal profession. It’s easy to spot—the swagger, the loud voice, the flashy Rolex. Judges belittling inexperienced litigators, taking joy in showing who’s king of the courtroom. Attorneys arrogantly insisting their strategy is superb, their trial ability without peer. Brilliance won the case, not the facts, the law, the jury. I, too, have succumbed to this disorder, dismissing others as no-talent hacks, not even close to my sublime abilities.

Even though hubris is more recognizable, it is the lack of courage that is more pervasive, more debilitating to our work, our world. We can avoid the allure of hubris by being passive—keeping our fat mouths shut, acting modestly, realizing everyone is fallible. Courage, however, demands action: confronting another about an unethical act, calling the Disciplinary Committee, marching into a police station to report that a colleague, respected and loved, is a crook.

Being courageous is much more challenging especially if you were taught, as I was, never to rat. This street ethos was drilled into me, it seems, since birth, for every Brooklynite knew the story of Arnold Schuster, a clothing salesman, who fingered Willie Sutton, a legendary thief who robbed banks because “that’s where the money is.” A month or so after escaped convict Sutton was rearrested, Schuster was shot dead in front of his Brooklyn home—two bullets in his groin and one in each eye.

It’s easy to claim that, unlike Paterno, we would have quickly and publicly revealed Sandusky’s horrors. Yet, I question whether we always demonstrate courage in our practice. On numerous occasions I have remained silent while others bent the rules.



Lack of Integrity


We justify looking the other way by professing that “it wasn’t me but co-counsel who deep-sixed the incriminating email”; that “no one serves every medical record, especially the one that highlights the preexisting injury, without a court order.”  It’s easy for this behavior to become a way of life, a way we litigate. We justify this lack of integrity through a million excuses, all of which are bogus.

It’s painless, of course, to preach virtue; much harder to live it. And as I sit high above the grimy sidewalks of Manhattan, I have little hesitation in insisting that all lawyers display courage. Except I keep asking myself whether, if I stumbled on a heinous act by someone I admired, could I reveal that incident without hesitation or regret? I sure hope so.

Catching your partner stealing the life savings of a little old lady is not an everyday event. More common are issues less monumental, more subtle, yet as critical. Ethical issues arise often in every lawsuit. How we react tells much about our character, ourselves.

Play by the rules. Not very hard, is it? Until your adversary serves 100,000 documents late and in random order the night before a crucial deposition. Or when he claims the witness is incapacitated and can’t testify, and you find that the malady was the equivalent of a sore throat. The temptation to respond, to even the score, eats at you.

Cutting corners with a wink and a nod is customary practice for some, but after the case has concluded, I realize these shady actions never influence the outcome. In fact, when you finally receive the linchpin document that your adversary swore never existed, not only do you high-five the entire office, but your anger turns to determination. “If the SOB tried to hide this one, he must be hiding others.” So now the adrenaline flows and you painstakingly review all documents, searching for other evidence of your adversary’s malfeasance. His attempt to conceal a document has transformed you from a complacent litigator into a tenacious, unrelenting foe.

I belong to the “don’t get angry, get even” camp. To respond in kind is unproductive and weakens your case. Because I’m no rube from Hicksville, I know that evil occasionally triumphs. But a smart, determined litigator, through comprehensive discovery and detailed depositions, will learn whatever the client or her attorney wants to keep concealed.

Speak up. If we’ve learned anything from the Penn State cover-up, it’s that good people must be vocal. Silence in the face of evil is evil. Forget the institution; think of the victims, whether innocent children or wizened lawyers. Too often, we remain mute because questionable behavior is viewed as mere gamesmanship between two consenting adult lawyers. Both sides do it, which levels the playing field. What’s the big deal?

“When you see something, say something” is plastered all over the subways. Same for us. A quick “Wait a second,” when co-counsel suggests unethical strategy, should end it. People may not initially appreciate your objection, but they’ll respect you, which is more important.

Clients also need to be told what’s going on. So easy to avoid the bad news, sugarcoat the judge’s ruling, promise brilliant skies and soothing breezes. Tough to announce: “This case ain’t looking good. We better cut our losses. We should consider settling.” Some clients don’t enjoy a pessimistic assessment. They may even storm from your office, vowing to retain another firm that “believes in the case.” Not words that endear you to the managing partner.

The day, however, will arrive when you have to provide a realistic appraisal of the case. Better sooner than on the eve of trial, when options are limited or nonexistent. Even clients who surround themselves with yes-men will appreciate an early warning that can save them legal fees and a devastating defeat. I want my clients to have as much information as possible so they can make educated decisions based on the facts, the law, the judge, and the jury.

Admit mistakes. We all make them. After all, most lawyers are human. Whenever I’ve screwed up, I sat down with my partners and sought their advice. What I perceived as a disaster was often considered relatively minor in light of suggestions on how to remedy the situation. My confessions were usually met with understanding and absolution. An adverse ruling that was handed down because you missed a deadline doesn’t get better if no one is told. Come clean. Someone might have been there and have a solution.

Keep your word. An elite academic high school in Manhattan was involved in a cheating scandal. One former student wrote that the numerical grading system encourages students to cheat because a 94 rather than a 93 could be the difference that decides whether they are admitted to an Ivy League university. It’s not our fault; the grading system made us do it.

Cheating and lying are wrong. If you give your word, don’t weasel out of it by claiming “I never said that.” Have some integrity. It doesn’t take long before everyone knows who’s a phony. If your adversary wants everything in writing, maybe it’s you.

Make the correct ruling. Judges get vilified in the media when a decision runs counter to public opinion. Be courageous. Do what’s right. 

Kenneth P. Nolan

The author, a senior editor of Litigation, is with Speiser, Krause, Nolan & Granito LLP, New York City.