Utah Bar Journal

I remember the discussions we on the Supreme Court Advisory Committee on Professionalism had on this particular Standard, particularly our concern about unfortunate lawyers who did not stipulate to otherwise uncontested matters, either because their clients wanted to fight all four corners of the case and had forbidden counsel from “caving in” on anything, or because counsel had chosen that path for themselves. I was one of two young lawyers on that Committee at the time and could not necessarily identify experiences from my legal career that fell under this heading. Then, within a short time after the adoption of the twenty Standards, and to my surprise and dismay, I had two experiences relevant to this particular Standard. As a lawyer, I understand the burden of proof, but these particular instances went beyond that, becoming unduly burdensome to the court, parties, and counsel. I question whether there was a “sound advocacy basis” in these instances.

In each instance I was representing an injured plaintiff. The accidents involved clear liability on the part of defendant drivers. However, in each instance the insurers had apparently instructed counsel not to concede liability as discovery progressed, and even as it was nearing an end. As plaintiff’s counsel, I was frustrated that I could not simply close those chapters of the case and move on to others. I had been taught by mentors to focus on the heart of the dispute, and to move beyond matters that were not in dispute or that were trivial or that may unnecessarily distract from the center of the case. I had heard from judges in CLE contexts that it was impressive to the court when counsel would concede weak points or indicate that they had chosen to drop certain issues or items in order to focus on the main disputed areas or stronger points. I was a pragmatist, but with these two instances I faced the task of having to put on an unnecessary portion of a case in order to jump through what appeared to be an unreasonably imposed hoop. In each instance I was upset. Greater patience by my clients, as well as expenditure of their money, was required. Perhaps the latter is what prompted this position by my opponent. In each instance my clients became frustrated with the legal process.
In the first case, liability was so clear that I simply asked at the outset about a stipulation to that effect. Defense counsel indicated that the insurer was not interested in conceding any points. I asked again, and again, to no avail. Finally, and in response to their line in the sand, I chose to propound an extensive and detailed set of requests for admissions. I left no room for argument or factual dispute in the requests. I asked the defendant to admit even the simplest of undisputed facts. In response to the requests, and to my surprise, counsel called me and again stated that the insurer had reviewed the requests but was “stubborn” and still would not stipulate to liability. The defendant then filed a formal denial of nearly all of the requests for admission. Upon receiving that stunning document, I prepared our liability case, ultimately filing a motion for summary judgment and attaching an affidavit from my liability expert. The trial judge held oral argument, then issued a strongly worded opinion, granting our motion and awarding attorneys fees and the expert’s fees, as well as other costs associated with the motion. While gratifying, none of this would have been necessary had the insurer and counsel simply made a good faith effort to resolve by stipulation the undisputed relevant matter.

In the second case, I had understood that the defendant would not contest liability. But in response to a settlement offer near the end of factual discovery, the insurer panicked and for the first time indicated that it would indeed choose to contest liability. There was no previous indication that liability was even contestable; all indications were that liability was clear. The insurer had conducted no liability discovery, and had instead focused its energy on understanding and reducing the plaintiff’s damages. Counsel’s new theory of liability was far-fetched. Simple calculations of time, speed, and distance necessary to construct such a theory appeared bogus, and counsel admitted to having no scientific basis and no expert witness for such a position. The insurer wanted time to develop this theory but gambled by ignoring the settlement offer. I asked, even begged, for a stipulation as to liability. He asked for a stipulation to extend discovery. The time required to search out experts to support such a theory created delay and afforded plaintiff the opportunity to strengthen her damages case. Additional damage depositions occurred and were helpful to plaintiff. Eventually, the defendant’s insurer could not find an expert to sign off on its proposed theory of liability. Damage projections had increased, the previous settlement offer had been withdrawn, and the case settled for several hundred thousand dollars more than the previous offer.
In contrast to these two examples, however, I have experienced an overwhelming number of instances with opposing counsel working well together, moving beyond obvious and undisputed issues, and getting to the heart of disputes. I am one who enjoys the practice of law for this very reason. Dispute resolution brings me great satisfaction. I want good working relationships with opposing counsel and I enjoy focusing our attention on finding the contentious areas or issues that may divide us, but at the same time building upon those foundations where we find agreement.

The Utah Supreme Court has recently, once again, emphasized the importance of professionalism and civility, this time while imposing the ultimate sanction – refusal to reach the merits of an offending attorney’s client’s case:

We have sought to encourage the bar to aspire to professionalism and civility in the practice of law through our adoption of the Standards of Professionalism and Civility. While these standards are not binding, we encourage members of the bar to study and follow them. Had counsel in the cases at bar observed these standards, he and his clients would not have incurred the severe sanctions we impose today.

Peters v. Pine Meadow Ranch Home Assoc., 2007 UT 2, ¶22. The Court further stated:

There is a misconception among some lawyers and clients that advocacy can be enhanced by … overly aggressive conduct, or confrontational tactics. Although it is true that this type of advocacy may occasionally lead to some short-term tactical advantages, our collective experience as a court at various levels of the judicial process has convinced us that it is usually highly counterproductive. It distracts the decision-maker from the merits of the case and erodes the credibility of the advocate. Credibility is often directly tied to civility and professionalism.

Id. at ¶21.

Be wise, be professional. Adopt Standard #10 and the other Standards as your calling card. Inform clients that they, too, should abide by these Standards. See Utah Standards of Professionalism and Civility 2 (“Lawyers shall advise their clients that civility, courtesy, and fair dealing are expected.”); 20 (“Lawyers shall not authorize or encourage their clients or anyone under their direction or supervision to engage in conduct proscribed by these Standards.”) Resolve by stipulation “undisputed relevant matters” and in doing so focus attention at the heart of the dispute where it will more appropriately be resolved.