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DTCI: Note from the defense - Stop the 'unnecessary roughness'

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dtci-mortimer-reneeI was told that I had to write an article when I became a member of the board of directors of the Defense Trial Counsel of Indiana. When I asked what the topic was to be, I was told, “Anything you want!” OK. Now what? What do I want to say to my colleagues in Indiana? Should I write a case note? No. There are too many of those already out there. Should I write a perspective from a lawyer from “the Region?” No.

We need to annihilate those boundaries, not enforce them. What about an article on electronic discovery or the Medicare/Medicaid issues? No. We have all either given those lectures or attended them over and over again. I was at a loss. What do I want to say to everyone out there?

As I was pondering this daunting task, I was buzzed by our receptionist. “Prominent plaintiff lawyer” was on the phone for me. (I have removed his name to protect him from jabs from his colleagues for being too nice to a defense lawyer.) I wondered why he was calling me, as we don’t currently have a case together. It turns out that he had a case with one of my partners and just thought he would call me to see how I was doing, as we had not spoken in a while. We had a nice chat and hung up. I thought how nice that call was – and how rare. It then hit me that I had found what I wanted to say to all of you.

While I am sure this writing could be deemed just another one that promotes civility, and while I am sure that there is a long list of ethical rules that promote that, too, I cite none here. I simply say this: Stop the (to use a football phrase) “unnecessary roughness.” I am hereby throwing a “flag on the play.”

I am definitely not saying to stop being fierce advocates for our clients. We all lose sleep at night, thinking about our cases, making sure that we are doing the best we can for our clients. (I wish the sleeplessness would end, but after 21 years of the practice of law, I know it won’t.) Unfortunately, some of us on both sides of the “v.” are also lawyers who cannot seem to handle a case without making other counsel on the case simply miserable. These lawyers seem to think that is part of their duty to their clients. I disagree.

Being disrespectful to the court or counsel does not help your case. Nor do endless multipage letters that voice baseless objections or accusations. I certainly know that my clients won’t pay for this type of activity and want me to devote my time to the pertinent issues of the case. Yes, it is part of the job to argue and to advocate, but do not do it at the expense of professional courtesy.

I am encouraged by my “prominent plaintiff lawyer” colleague. I hope this trend continues. Our parents told us to treat others as we would like to be treated, so I hereby remind you all of that, without citing to any legal authority. I say our jobs are hard enough. Please just do the right thing and don’t add unneeded roughness to our lives and yours under the cloak of advocacy. It will make all of our professional lives much better.

There is my message. Have a good day.•

Ms. Mortimer is a member of the DTCI Board of Directors and is a partner in the Schererville office of Hinshaw & Culbertson LLP. The opinions expressed in this article are those of the author.

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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