One of the most difficult and complex things a lawyer does is to exercise his/her professional judgment. Professional judgment is the process by which a lawyer arrives at a decision. The focus here is on the process, not the decision. At a minimum, it requires knowledge of the law. But the process involves much more than a rote reading and application of the law. A recent, informal survey of successful and experienced lawyers shows how complex the process of exercising professional judgment is. The survey asked how the lawyer would respond if their opponent misses a deadline to designate experts and whether the client should be involved with the decision on how to respond. The answers reflected a depth and breadth of experience, a sense of fairness, and a strong recognition of the importance of one’s reputation.
In order to understand the context of the survey, it is helpful to examine a situation in which these questions apply. There are occasions during the practice of law when difficult and complex decisions must be made by an attorney. These are the decisions which tug an attorney in different directions and test their “professionalism”. One such decision may be when an opponent is a day or two late on a deadline and the lawyer is asked not to object. In that situation, relief for the late party will likely be granted by the court, even if there is an objection. However, there is a chance that the court will not grant relief and the client may want to take that chance. Moreover, there may have been some prior dealings between the opposing attorneys that factor into the decision. Such decisions require exercising sound professional judgment.
Let’s say you are a lawyer who is representing the developer in a construction defect case and there is a case management order (CMO). A CMO is an agreement among the parties, which is approved by the court, and controls discovery, the resolution of discovery disputes, how documents are handled, the mediation process, and disclosure dates, among other things. The CMO in effect requires all parties to disclose their experts on a certain date. On the date set forth in the CMO, you email the list of experts but the plaintiffs’ attorney fails to do so. After a couple of days, the plaintiffs’ attorney calls and says she received your list of experts, that she would be sending hers over that day, that she hoped you wouldn’t make a “big thing” about it being late and that she simply forgot. However, you know from one of your experts that she may not have forgotten, as demonstrated by the fact that she was calling to find experts on the date the designation was due.
You tell her that you need to think about it and ask her to send you an email requesting that (1) you not object to the late designation and (2) the reason for it being late. That same day, you receive the plaintiffs’ designation of experts and a notice of deposition for all your experts with the minimum days of notice possible so that plaintiffs can take your experts before you take theirs. While there is no code or case on point, typically plaintiffs and their experts are deposed before defendants and their experts, at least, as to the same fields of expertise. This seems to be the custom and practice in most locales. Obviously, she was not following this custom and practice. So, in addition to being a couple of days late, and in violation of the court order in that regard, the excuse used by the plaintiffs’ attorney is suspect at the very least. By her delay in designating and then noticing your experts before you noticed hers, she may also have gained a tactical advantage by being able to take your experts before you take hers.
Unlike other states and what is required under the ABA Model Rules, California does not have an affirmative duty to report dishonesty of an attorney. So, there is really not much you can do about the attorney’s apparent dishonesty. However, you are also now faced with a complex situation dealing with the plaintiffs, your clients, insurers and other parties in the case. As the developer’s attorney, you are not only defending against the claims brought by the homeowners, you are also prosecuting those same claims, in one form or another, against the various trades and design professionals. In addition to your client, and perhaps its corporate counsel, watching your every move, there are often a host of claims professionals and coverage attorneys retained by insurance companies to which you report. Moreover, each of the sub-trades you are prosecuting is watching for any advantage you may give the plaintiffs so that, if you do, they can claim you prejudiced their rights. In analyzing how you should proceed, you begin to consider your options and client communication requirements.
The use of experts is vital in civil litigation generally, and especially so in construction defect litigation. Construction defect litigation is truly expert driven. Each party in litigation has the right to use an expert to explain matters that are beyond common experience and in situations in which the expert’s opinion would assist the judge or jury. Dates to disclose those experts are either set by a code section, ordered by the court, or agreed to by the parties themselves and approved by the court. On the appropriate date, each party serves on the other parties a list of experts each may use in trial. The list includes not only the name of the expert but also a description of the expert’s qualifications, what the expert is expected to testify to and the cost of the expert, among other things. The date to disclose experts is fairly close to the trial date, usually within 50 days of the trial date.
If a party fails to disclose its expert in a timely manner, the court, on objection of any party, shall exclude the expert. However, the late party may ask the court for relief for such failure and the court shall grant relief if a number of factors are met. Basically, unless there is some type of prejudice to the other party, as long as the late party acted promptly and has some reasonable excuse, the court will likely grant the relief. Of course, attorneys can always come up with some argument as to why an excuse is not reasonable or why a party has been prejudiced.
Practically, the attorney who fails to disclose experts in a timely manner has a couple of options. The attorney can simply serve the late list and wait to see if any of the other parties expressly object. However, this option can create problems because there is no requirement that any other party expressly object. So, unless one of the other parties take the depositions of the late disclosed experts, the attorney that disclosed late will not know for sure if the expert can be used during trial until the judge rules either during pretrial motions or during trial.
Another and safer option is to simply follow the code requirements. The code requires the attorney to meet and confer with the other attorney(s) and ask for an agreement to allow the late disclosure. If the other attorney refuses to agree to the late designation, the late party is required to file a motion seeking relief. If the late attorney acted diligently upon learning of the mistake and there is “no prejudice”, the court will likely grant relief.
In addition to the procedural rules, there are other things the experienced attorney will likely consider. First, the attorney must consider what is appropriate to tell the client and whether the client is required to consent to the late designation. The law requires the attorney to keep the client reasonably informed of “significant developments” in the case. See California Business and Professions Code section 6068 (m) and California Rules of Professional Conduct, Rule 3-500. Typically, granting an extension of time is not considered significant unless there is some “material prejudice” to the client’s interest. The State Bar has looked at revising Rule 3-500. A proposed change may include a Comment on the Rule 3-500 explaining what is and what is not significant:
“Whether a particular development is significant will generally depend upon the surrounding facts and circumstances. For example, a change in lawyer personnel might be a significant development depending on whether responsibility for overseeing the client’s work is being changed, whether the new attorney will be performing a significant portion or aspect of the work, and whether staffing is being changed from what was promised to the client. Other examples of significant developments may include the receipt of a demand for further discovery or a threat of sanctions, a change in a criminal abstract of judgment or re-calculation of custody credits, and the loss or theft of information concerning the client’s identity or information concerning the matter for which representation is being provided. Depending upon the circumstances, a lawyer may also be obligated pursuant to paragraphs (a)(2) or (a)(3) to communicate with the client concerning the opportunity to engage in, and the advantages and disadvantages of, alternative dispute resolution processes. Conversely, examples of developments or circumstances that generally are not significant include the payment of a motion fee and the application for or granting of an extension of time for a time period that does not materially prejudice the client’s interest.” (Emphasis added). See California State Bar Commission for Revision of Professional Conduct, Proposed Rule 1.4 (RPC 3-500, 3-510) September 22, 2009.
It may be clear in some situations that a client would not be materially prejudiced; for example, granting a 30 day extension to answer a first set of interrogatories. Others, like the above scenario, are more complicated. In the above scenario, the plaintiffs’ attorney may or may not have a valid excuse and the plaintiffs may or may not have gained a tactical advantage, which will be clear unless or until there is a hearing and ruling. Thus, the more complicated the scenario, the more the attorney is required to exercise his/her professional judgment.
As noted earlier, an informal, qualitative survey of lawyers dealing with the late designation of experts and whether the client should be consulted in making the decision as to how to deal with the situation was conducted. The lawyers, members of the San Diego Chapter of the American Board of Trial Advocates, were asked: 1. If your opponent misses a deadline to designate experts by a day or two and asks you to allow him/her to be able to designate without a motion, would you agree?; and, 2. Do you believe that you need to, or should, get permission from the client before you agree to the request? Just under ½ of the members responded (66/175 approximate). Of those who responded, the vast majority answered “yes” to question one (48/2) and “no” to question two (30/18). The specific numbers of “yes” and “no” do not adequately reflect the views of the members, however. A qualitative evaluation of the survey demonstrates a deeper reflection and sense of professionalism of the members. Such an evaluation is recognized in many studies and, while this writer does not suggest his evaluation rises to a peer reviewed academic level, a qualitative evaluation is instructive. See Weiss, R. S. (1994) Learning from Strangers. New York: Free Press; Van Manen, M. (1990) Researching Lived Experience. New York SUNY.
While a large majority answered “yes” they would allow the late designation and “no” they would not inform nor seek the client’s consent, virtually all qualified their responses in such a way that reflected a high level of experience and professionalism. In other words, their responses revealed the complex nature of the exercise of professional judgment.
The lawyers in the survey examined the issues from a variety of perspectives. One of the most prevalent perspectives was based upon the prediction that the court would allow the late designation anyway so there was no value in objecting and the client did not need to be informed. It takes experience to be able to reasonably predict what a court will do. Based upon that assumption, the attorney believed he/she was not giving up any rights of the client so there was nothing of significance the client needed to be advised of. These attorneys felt that it was within their appropriate judgment to make such an assumption and base their decision on it. Others felt that it was fine to make that assumption, but the client should still be informed of the decision. Still others said that, not only should the client be informed but that the client should also be required to consent. While it can be argued that one can never be certain what a judge will do and, therefore, an attorney may in fact be prejudicing the right of a client (the court could sustain the objection and not allow the late designation), many of the lawyers surveyed felt that it was within their authority as a professional to exercise their judgment based upon their ability to predict. While no one can guarantee an outcome, professional judgment does require evaluating the likelihood of a result and factoring that into the decision making process, including the judgment as to whether the client should be consulted.
Another perspective present in the study focused on how the act of objecting would affect relations with the other attorney both in the current case and in future cases. While part of that perspective was based upon reputational considerations, it also dealt with the important benefit of being able to work together and cooperate. Working together and cooperating can inure to the benefit of the client and court system because the lawyers will be spending less time arguing and there will be less need for the court to intervene in disputes. To be sure, the California Bar recognizes cooperation and civility (along with honesty, dignity, candor, diligence, respect, and courtesy) as essential elements to the fair administration of justice and conflict. California Attorney Guidelines of Civility and Professionalism, California State Bar, July 20, 2007.
As to the reputational aspect, that could be viewed as merely a personal benefit to the attorney. But reputation can also enhance the ease with which a case is litigated. Thus, many in the survey made the point that one’s reputation in the legal community for not putting others through meaningless work was valuable and in the client’s interest because, in the long run, such a reputation would cause others to act toward you in the same manner.
It is this last perspective that appeared most prevalent: essentially, do unto others as you would have others do unto you. These attorneys felt strongly that there was an obligation for professionals to treat each other fairly and in a respectful, collegial manner, as you would want to be treated. The survey respondents reflected a strong sense of doing the “right thing” relating to the legal system as a whole even if, arguably, the client lost a potential immediate benefit. To be sure, the same person who was making the overall decision was also deciding that the immediate benefit to the client was not significant because of their prediction that the court would allow it anyway. While having the same person deciding the significance of the benefit and the likelihood of that benefit occurring is a theoretical conflict, these lawyers do not seem bothered by that conflict, viewing it as part of exercise of their professional judgment.
The survey results provide a glimpse of the complex process of professional judgment by successful and experienced lawyers. It shows the various perspectives a lawyer may use in coming to a decision. These perspectives include applying the appropriate law, ethics, short and long term consequences, predicting the outcome and the impact on one’s reputation. The results demonstrate that the value of a lawyer’s services does not simply come from winning or losing a specific case but rather the level at which the lawyer exercises their professional judgment. Finally, the results demonstrate that the lawyers surveyed are professionals in the truest sense of the word.
