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How Lawyers Win: It's Not Always Pretty

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TV dramas like Law and Order or Perry Mason often make the courtroom look like a heroic battle between good and evil. The good guys and the bad guys are easily identified. It is often not that way at all.

During my career as a trial attorney, I handled two separate medical malpractice suits against the same doctor, a family practitioner who had a penchant for fondling the breasts of his female patients and calling it a thorough chest exam. Many women had complained about having been sexually violated by this doctor and the Board of Medicine had investigated him multiple times. These complaints had, with few exceptions, been routinely dismissed on the grounds that these women didn't understand all that a good physical exam involved.

In the first trial, the defendant's expert witness, also a practicing physician, was confident in his testimony about the innocence of the defendant. He described what a proper chest exam involved and assured the jury that was precisely what the defendant had done. We lost that case.

I felt the expert witness was an honest professional who believed the defendant had been subjected to a frivolous claim. I suspected he knew nothing about the many women who had previously filed complaints against the defendant. When I took the expert's discovery deposition in the second case, I had the records of the Board of Medicine available and reviewed each charge with him. He confirmed he had had no knowledge of any of these prior charges.

When this expert again testified on behalf of the defendant in the second trial, his testimony had a different tone. He testified that if there was any cupping of the breast that resembled fondling, that would be improper. This time we won. I credited it to the fact I had been thorough enough to inform the defendant's expert witness about the history of complaints, while the defendant's attorneys hoped to again keep this larger set of facts out of the equation.

Is this right? Should justice hinge on the attorneys' success at hiding their clients' faults, or bringing such faults to light? And what happens to justice when the attorney's interests are in conflict with that of the client?

Our system is set up so that a conflict between the attorney and the client always lurks in the background. With an unexpected turn of events, the attorney can stealthily choose who has to lose, the attorney or the client. This conflict became painfully prersent in a case I handled that had a major impact on how I felt about being a trial attorney.

In the 1990s I was representing a teenage girl in a suit against her father, who had sexually abused her over a period of years. The trial was several days away, and I was preparing my client to testify when she turned to me and said, "I don't want any of this. I just want my dad without the bad stuff going on."

I froze. What would happen to my contingent fee if she had her wish? Because I was paid only if her father lost and a money judgment was awarded to my client, I would lose my chance to be compensated for the hundred hours I had put into her case. As I realized how quickly my self-interest had come to the fore, I saw this inherent flaw in the system with a clarity I had not had before.

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