Tuesday, November 8, 2016

Observations on Professionalism

Years ago, I was doing some research for a presentation I agreed to deliver. My process involved reading some depositions filed in various cases. That presentation focused on medicine, and so I gravitated towards medical depositions selected from random cases. I noticed various methodologies lawyers employed for clarifying standards in medical testimony. 

The project caused me to recall when I began practicing law, and learning that the normal practice in a deposition of an expert physician was to conclude each with a couple of very critical questions. For example, after the testimony had been nearly completed, it was traditional to ask "have the opinions expressed today been to a reasonable degree of medical probability." This was driven by a requirement in the statute that said such "medical probability" was a standard medical opinions had to meet. 

That standard changed in the early 1990s, at least in Florida worker's compensation. The Florida Legislature amended Fla. Stat. 440.09 to raise this causation standard and make opinions in worker's compensation perhaps a bit more constricted. Thereafter, we continued to close the deposition with the similar question, but the phraseology was slightly different: "have you opinions expressed today been to a reasonable degree of medical certainty."

It became so rote that I even knew attorneys that had the phrase printed on the bottom of their deposition planning sheets. Pre-printed there to remind them to close the deposition with the critical quantification of opinion (along with questions about reading the deposition and others). It is the type of question that could be easily forgotten in the heat of the moment. 

And, in expert depositions attorneys are often worried about covering all of the bases, marking the appropriate exhibits, and making arrangements for preparation of a transcript. Too often in the course of my practice, that critical medical deposition also came very late in the game, often on the eve of trial, and pressure creates stress; stress can cause errors and mistakes.

I remember once forgetting to ask the "medical certainty" question in a deposition. That could stick in my mind based on a bad outcome. It could have happened that I proceeded to trial, submitted that deposition, rested my case, and was then hoist "upon my own petard." But instead, it came to my attention much sooner, during the deposition, because I was practicing against a professional. And at the close of the testimony, although it was anything but favorable to his client, this attorney reminded me that I had not asked that critical question. It was a mistake that anyone could make. We all get so wrapped up in the details sometimes, that we can forget the more mundane, repetitious, but too necessary issues. 

But this opposing attorney was a professional. He was courteous, and focused on bringing the case to trial in a manner that would provide the judge a fair opportunity to make the right decision. He was disinterested in prevailing on some mundane technicality. I appreciated and respected his courtesy. Our dealings thereafter were always on a very evenhanded basis. He had taught me that I could trust his professionalism, and I was fortunate to practice against him.

Similarly, in preparing for that presentation, I recall one deposition vividly. I was not sure at the time why it stuck in my mind, but it was different somehow. Later, I would conclude that it was special and noteworthy because I admired the thoroughness and courtesy of counsel. I have read my share of depositions. I would guess that the volume is easily in the thousands, and more likely in the five figures. Depositions are simply very common in litigation, and perhaps more so in worker's compensation. The tendency in Florida seems to be for expert testimony to arrive via deposition rather than live witnesses at trial.

After all I have read, before and since, I still find that deposition compelling. That deposition appealed to me. And, as I mulled that conclusion, I found myself frankly in awe and appreciation of the two attorneys involved. The simple fact was that this testimony contained no animosity, anger, or sarcasm. These two attorneys had taken this deposition in a cooperative and professional manner. Each had dropped the proverbial ball at least once, only to be rescued cordially, professionally and calmly by their opponent.

In one instance I recall counsel misstated a question, referencing an incorrect date when asking an important question. The physician mistakenly agreed with counsel, working to the benefit of counsel's opponent. But, rather than allowing that error, opposing counsel interrupted politely and questioned if that was correctly stated or an error. The error was corrected. In the process, professionalism prevailed. 

And, what went around came around later in that deposition when the previously cordial and professional attorney also made an error. After carefully discussing a critical diagnostic test result, very near to the end of the examination, counsel uttered the phrase "I have nothing further." And, in a similarly cordial manner, counsel who had so recently mistakenly stated a question, now calmly said "you did not attach that medical report, did you intend to?"

These two examples stand out from my reading so long ago. As I reminisce on the tone and cadence of that testimony, it occurred to me that I was honored to be (figuratively) in the presence of two professionals doing the arduous task of perfecting evidence. I had the opportunity thereafter to discuss that deposition with one of the attorneys, and she told me that "in litigation, it is not just about the case that you're working on today, it is about every case that you'll work on from now on." In other words, treat people with dignity and respect and hopefully they will treat you the same as you travel together down a professional path that may be decades long. 

As you behave, so will you be known. As you support and sustain professionalism in your actions, you will build a reputation. And, that reputation will be the foundation upon which a professional career is built. Just as in the construction of a house, a poor or cheaply constructed foundation can undermine everything that is built upon it.

From my perspective, sitting on Florida's worker's compensation bench this last 15 years, I can relate that there is no more pleasant aspect of this job then a vigorously tried case, presented by two focused, prepared and zealous advocates. I have been privileged to watch the practice of some of the very best attorneys. The professionals are both apparent and obvious. They invest their zeal and vigor. They pursue their cause and outcome. And, they do it without ever raising their voice, demeaning a witness or each other, or dishonoring the process. Those attorneys are a joy to work with, and are ultimately the best part of presiding over cases.

If any of the foregoing describes you, thank you. I appreciate your professionalism, and your commitment to making the practice of law an avocation of which we can all be proud. And, if you have slipped, as most all of us periodically do, take this opportunity to refocus on your dedication to the professionalism of the practice. Practicing law literally can be "all that," and whether it is or is not ultimately it's up to you.

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