February 20, 2006

Feature Story

By Michael Dayton Want to avoid trench warfare with opposing counsel? Sometimes it's as simple as taking a hard look in the mirror, says Raleigh lawyer Dan McLamb. During his 30 years of practice, McLamb has collected what he calls his guidelines to civility. "If you do these things, you're not going to get in a lot of trouble when you're dealing with other lawyers," McLamb said Feb. 3 at a Greensboro CLE. The event, which focused on professionalism, was jointly sponsored by the North Carolina Academy of Trial Lawyers and the North Carolina Association of Defense Attorneys. The Joe Moore 24-hour rule. "Joe Moore was a great lawyer but he had a bad temper," McLamb said. "He would get things that would make him furious when they came in from the other side. He would rip off the most vicious reply letter you could ever comprehend that would be sure to detonate World War III if it went out. But Joe Moore also had another rule and that is, he would put it on his desk and he would keep it for 24 hours before he mailed it. And when he mailed it the next day it almost never looked like the first draft." The end result of the delay, McLamb said "was, almost always, much better relations as the case went down the pike." Bonnie's one-consult rule. "I'm particularly lucky in that I happen to be married to somebody [Bonnie Weyher] who is my law partner who is a person whose professionalism I respect the most. I would never, never in my law practice take a position which I knew might be controversial or close to the line without first going and consulting with Bonnie and saying, 'Is this the right thing to do?'" McLamb advised lawyers to find someone they can turn to when they get in a jam — "somebody in whom you have utmost respect for their character and judgment. "When you get in a difficult situation and are weighing whether you really ought to send this letter or file this motion, you can pick up the phone or walk across the office and talk about it," he said. "And ask this question: 'Is this really promoting the interests of my client? Is this really what I ought to do from a professionalism perspective?' Then make the decision and go forward." If you play on the edge of the cliff, you may fall into the ravine. "I see this among defense lawyers who fight like hell all the time, who are right on the edge, pushing, pushing, pushing — and then they get blasted with this awful motion accusing them of doing all kinds of bad things and they are crestfallen," McLamb said. "They cannot figure out how in the world this happened." McLamb's response: "I tell them if you're going to play on the edge, somebody is going to swing back." McLamb said the envelope can be pushed "if the principle is important enough. But don't play on that playground all the time because you're going to fall, and you're going to get hurt. Play in the safe area unless there is good reason to be fighting on the edge for the principle that deserves the fight." Don't confuse civility with weakness. McLamb said he gleaned this wisdom from his dealings with opposing counsel. "The lawyers I deal with from the plaintiffs' bar for whom I have the most respect, and who I believe get the best results for their clients, are almost across the board the most civil lawyers with whom I deal," he said. "I believe without doubt that the person who feels that he or she has to be, in my Johnston County terms 'a jerk,' is the one that I most hate to pay and is the one that I most hate to get things resolved with. It is human nature. "Civility in my mind conveys confidence," McLamb said. "Civility in my mind conveys ability and skill. It should never be confused with weakness." Don't return evil with evil. Fighting fire with fire rarely makes a case better, McLamb said. "All of us have been there when someone comes ripping down the hall and says, 'I can't believe that jerk did that. Look at this.' And the immediate instinct is to fight back and do something with equal jerkdom as what you just got," he said. The problem, according to McLamb: that approach rarely works. "It takes two people to fight," he said. "I'm convinced that if you refrain from it in terms of costs of litigation and anxiety, you have benefited your client when you do that." If you're fighting with everyone, take a look in the mirror. "If that starts to happen to you, and you're the one in the war with everybody all the time … it's usually a two-pronged thing, and the person who is in all the fights usually has something to do with it," McLamb said. "So if you find yourself constantly fighting, I suggest taking a minute to look at your own conduct. You may be part of the problem." Ruby's rule on intelligent behavior. McLamb said he learned a valuable lesson or two from his 84-year-old mother, Ruby. "When I was in trouble in school in the 8th or 9th grade for talking back to the teacher, she called me home and sat me down and told me something I've never forgotten," McLamb said. "She said, 'You may not be smart enough to be number 1 in your class, but you're smart enough to know how to treat people.' "The corollary for us is that we're all smart enough to know how to treat other people," he said. "Take that with you every day. You don't have to pick up the book. Judge Manning's dad taught us even if you don't do any research, 99 percent of the time the law is going to be exactly what it ought to be. The same goes for professionalism. If you never pick up a book, 99 percent of the times the rules are what they ought to be." Building a legacy. According to McLamb, when Judge Don Stephens swears in new lawyers each year, he gives them this advice: "A Wake County jury is now going out to deliberate on you and it will come back in 35 or 40 years. And I hope for you its verdict is that you served your profession well, that you treated others the way you should have treated them, and my hope for you is that that verdict is beyond a reasonable doubt, not just by the greater weight of the evidence." Said McLamb, "If your legacy is not your primary goal, then rethink your priorities. There are very few people who will remember if we won a case in January 2006 but they will remember how we practice law. So my one thought is that if you move your legacy to the top of the priority list, the professionalism issues will take care of themselves." Lawyers Weekly, Inc., 41 West Street, Boston, Massachusetts, 02111, (800) 444-5297 © 2006 Lawyers Weekly Inc., All Rights Reserved.