PBCBA BAR BULLETINS PBCBA_october2017.finalB - Page 22

PROFESSIONALISM Corner

PROFESSIONALISM Corner

Unexpected Teamwork in Jury Trials 1

AVERY S . CHAPMAN

Whether you litigate in federal or state court , chances are you will find yourself in a contentious trial , with an aggressive adversary , yet locked in a room with that adversary late one evening . If you cannot recall that happening to you , see if these words refresh your recollection : jury instructions and verdict form . You will likely now have recalled that at some point during your most contested jury trial , with emotions running high and everything on the line , you will have spent some quality time with your adversary working out a joint set of jury instructions and agreed verdict form .

Generally and even if the court requested the documents earlier , you cannot avoid this late night exercise by drafting and submitting ahead of trial . Evidence and testimony adduced at trial , legal rulings and timing issues often drive significant revisions to whatever you have previously drafted or submitted . What that means for the trial attorney is that the history of your conduct and demeanor with your adversary during the course of litigation and trial will definitely affect your adversary ’ s willingness to compromise and get to “ yes ” on issues in the instructions and verdict form that are important to you , your case and your client . If the past tenor of your pretrial or trial discourse has been acrimonious , it is somewhat unreasonable to expect the courtesy of an adversary , who will suddenly embrace all of your suggested revisions and amendments with open arms as you go through the long evening of creating the joint jury instructions and verdict form . In other words , you may believe you have won the war of words before that evening , only to lose the battle in the last moment .
While professionalism is paramount in so many areas of the practice of law , its absence during litigation and trial has the most profound consequences for a client . Jury instructions and the verdict form are the only road maps the jury has with them in their room during deliberation . Most trial attorneys will tell you not to underestimate the importance of the content and the impact the instructions and verdict form will have upon the jury ’ s decisions . Therefore , you want the instructions and the form to reflect your client ’ s position on the law as it applies to the facts of your case .
While there are certain pattern jury instructions available , which reduce some of the disagreements as to form , those pattern instructions are neither complete nor perfectly applicable without revision in all factual circumstances . You will have to negotiate in a collaborative fashion with your adversary over the ultimate instructions given to the jury . The instructions will then drive the formulation of the verdict form and so your final draft of the the instructions will affect the final verdict form .
This is not to say that professionalism during your litigation and trial conduct should be driven merely by self-interest . Rather , keep in mind your ethical duty to your client to effectively represent that client . To effectively and zealously advocate for your client , you should be sure to comport yourself in a manner that will not detrimentally affect your ability to achieve the desired results of your client .
If you have previously dampened the atmosphere of collegiality and collaboration with your adversary during the litigation and trial , you have harmed your client ’ s chances of success . In other words , professionalism during litigation and trial is not only an aspiration for all trial lawyers , but also the hallmark of a successful trial lawyers . Be sure to measure your conduct before and during trial with this ideal in mind . At some point during a matter , you are going to be locked in a room with your adversary late at night .
Avery S . Chapman , Esq . of Chapman Law Group , PLC , is a member of the Palm Beach County Bar Association Professionalism Committee . Mr . Chapman practices in Wellington , Florida where he counsels members of the business and equine communities on a wide range of matters including complex litigation and business law .
South Florida voluntary bar associations have recognized the importance of professionalism in a multitude of venues in their Joint Resolution of South Florida Voluntary Bar Associations , executed by Judges of the United States District Court , Southern District of Florida , Civil and Bankruptcy Divisions , Judges of the Florida State Fifteenth , Eleventh , Seventeenth and Nineteenth Judicial Circuits , and thirtyfive voluntary bar associations . See : http :// www . fedbar . org / Chapters / Palm-Beach-Chapter / Joint- Resolution-of-South-Florida-Voluntary-Bar-Association-Regarding- Lawyer-Civility . aspx ? FT =. pdf
See Comment to RULE 4-1.3 : “ A lawyer should pursue a matter on behalf of a client despite opposition , obstruction , or personal inconvenience to the lawyer and take whatever lawful and ethical measures are required to vindicate a client ’ s cause or endeavor . A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client ’ s behalf . A lawyer is not bound , however , to press for every advantage that might be realized for a client . … The lawyer ’ s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect .” [ emphasis added ].

Member Benefit :

Planet Green : http :// planetgreenrecycle . com

Going Green !

Photo : Kevin Smith and Chase Nugent
The PBC Bar Association raises funds by recycling ink jet cartridges , cell phones , and other small electronic with Planet Green . Most of us have these recyclable items sitting around our homes collecting dust . Why not recycle them and help us raise money at the same time ? Shown gathering donated items to deliver for recycling are Kevin Smith and Chase Nugent .
PBCBA BAR BULLETIN 22