MaintainingProfessionalism in

High-Stakes LitigationHow to Zealously Represent Your Client

Without Risking Your Reputation

The Hon. Kurt D. Engelhardt – U.S. Court of Appeals for the Fifth Circuit

Gerald E. Meunier – Gainsburgh, Benjamin, David, Meunier & Warshauer, L.L.C.

Kim E. Moore – Irwin Fritchie Urquhart & Moore, LLC

Andrea M. Price – Barrasso, Usdin, Kupperman, Freeman & Sarver, LLC

Louisiana Code of Professionalism

1. My word is my bond.

2. I will conduct myself with honesty, dignity, civility, courtesy and fairness and will not engage in any demeaning or derogatory actions or commentary toward others.

3. I will not knowingly make statements of fact or law that are untrue or misleading and I will clearly identify for other counsel changes I have made in documents submitted to me.

4. I will be punctual in my communication with clients, other counsel and the court. I will honor scheduled appearances and will cooperate with other counsel in all respects.

5. I will allow counsel fair opportunity to respond and will grant reasonable requests for extensions of time.

6. I will not abuse or misuse the law, its procedures or the participants in the judicial process.

7. I will cooperate with counsel and the court to reduce the cost of litigation and will not file or oppose pleadings, conduct discovery or utilize any course of conduct for the purpose of undue delay or harassment of any other counsel or party.

Louisiana Code of Professionalism

8. I will not engage in personal attacks on other counsel or the court or use the threat of sanctions as a litigation tactic.

9. I will support my profession’s efforts to enforce its disciplinary rules and will not make unfounded allegations of unethical conduct about other counsel.

10. I will work to protect and improve the image of the legal profession in the eyes of the public.

11. I will endeavor to improve our system of justice.

12. I will use technology, including social media, responsibly. My words and actions, no matter how conveyed, should reflect the professionalism expected of me as a lawyer.

13. I will seek opportunities to be of service to the bench and bar and assist those who cannot afford legal help.

14. I will be supportive of new members in the profession.

15. I will stay informed about changes in the law, communication, and technology which affect the practice of law.

2. I will conduct myself with honesty, dignity, civility, courtesy and fairness and will not engage in any demeaning or derogatory actions or commentary toward others.

At other times, counsel appeared to be guiding the witness in how to respond, with counsel’sinterjections that he was “completely confused [by a question] but that’s my problem” (Tr.94:19-95:4), and instructing the witness not to “let [counsel] put words in your mouth” toencourage her against cooperating with Defendants’ counsel (Tr. 267:14-18).

Plaintiffs’ counsel appeared aware that this conduct was improper, as he asserted non-existent objections such as “the could have, would have, should have objection” (Tr. 326:12-16) and recognized that he was ignoring Defendants’ repeated requests to behaveprofessionally, stating that Defendants “want to shut me up” to stop the repeateddisruptions (Tr. 326:12-16).

At times, counsel even appeared proud of his behavior, as when singing lyrics to a hit songfrom the film “Frozen” in an effort to mock defense counsel, and proceeded to “indicate onthe record that that was -- that previous three sentences of ‘Let It Go’ was to music.” Tr.457:8-12.

2. I will conduct myself with honesty, dignity, civility, courtesy and fairness and will not engage in any demeaning or derogatory actions or commentary toward others.

[C]ounsel provoked Dr. Glickman with sarcasm, mockery, and condescending questions. Forexample, after Dr. Glickman explained why he did not understand the pending questionposed by [counsel], he responded: “Would you like a glass of water? Are you okay? Slowdown. Not a trick question. I just want to ask you whether you did a report or not.Something wrong with that?” (Trial Tr. at 1360.) Although in that instance and others,counsel’s words during cross-examination could be read as polite from the record, they wereconveyed with scorn and derision.

[Counsel] delivered his argument in an agitated tone, scuttling about the well of thecourtroom, oddly gesturing, singing, and laughing, a style that may best be described asmanic. With a gallery full of faces unfamiliar to the Court but all seemingly familiar to[counsel], he created a sideshow of conspiracy theories, jokes at the expense of defensewitnesses, and was admittedly “fooling around” and “making fun.” (Id. at 1672.) The Courtis mindful that wit and sarcasm are often useful tools for trial lawyers, but [counsel’s] use ofsuch methods crossed the line between zealous advocacy and inappropriate behavior.

In re Fosamax Prod. Liab. Litig., 742 F. Supp. 2d 460, 480 (S.D.N.Y. 2010).

Communication

Bias

Differences in the ways that lawyers are treated according to…

• Gender

• Race

• Geographic location

• Firm Size

• Type of case

Is Winning at All Costs Worth It?

• Where do we draw the line between what a client wants or demands and our own professionalism?

How to Deal with the Increased Pressure and Demands of High-Stakes Litigation

Exceptional Examples of Professionalism in Action

Thank you and happy holidays!