A Gentlemen's Agreement
by Brian Shepard
While none amongst us could deny being guilty of the occasional “little white lie,” most of us understand the importance of composing ourselves with honesty and dignity in our personal and professional lives.
This is especially true of those of us who have given our oath and affirmation to uphold the integrity of the legal profession we practice—or in other words, all of us.
This lesson was highlighted in the recent Court of Appeals case of Lafevers v. Clothiaux. At issue was an agreement between opposing counsel in a medical malpractice trial. As a courtesy, the parties agreed that they would disclose to each other the witnesses that each intended to call the next day. One party’s violation of this agreement, what the Court describes as a “gentlemen’s agreement,” ultimately became the basis for a new trial.
Defendants’ counsel maintained throughout the course of the trial that she intended to call their retained expert, Dr. Matava, as a witness. Based on that expressed intention, plaintiff’s counsel referred to Dr. Matava as a witness in both voir dire and opening statement.1 Prior to resting her case in chief, plaintiff’s counsel again asked and defense counsel again represented that it was her intention to call Dr. Matava. Based on defense counsel’s statement that she intended to call Dr. Matava as a witness in her case, plaintiff rested her case.
After plaintiff rested, defendants began their presentation of evidence with testimony from the defendant physician that ultimately took the remainder of the day. Shortly after leaving court for the day, defense counsel sent plaintiff’s counsel an email indicating that her client had decided not to call Dr. Matava as a witness. Plaintiff subsequently provided defense counsel with proposed deposition offers and notice of her intent to seek leave to re-open her case in the morning.
The next morning at trial, plaintiff moved to re-open her case in chief to present Dr. Matava’s deposition testimony to the jury. Defense counsel opposed plaintiff’s motion on the basis that she had an absolute right to change her trial strategy. The trial court denied the plaintiff's motion and excluded the offered evidence.
The Court of Appeals found that, under the circumstances, it was an abuse of discretion for the trial court to not allow the plaintiff to re-open her case and offer Dr. Matava’s testimony. The Court stated that “such gentlemen’s agreements are to be encouraged as an essential part of both professional collegiality and the efficient administration of justice.” The Court went on to say, “the matter could have easily been fixed without the necessity of a retrial if defense counsel had supported (or at least not opposed) plaintiff’s request to reopen evidence to do what she would have done but for defense counsel’s representation.”
Here, we see an example of the balance that professionals must seek to achieve between zealous advocacy and efficient administration of justice. While it is certainly not necessary to clue opposing counsel into the strategy of your case, we all must remember that when interacting with opposing counsel that there are ramifications to our conduct. We cannot get so caught up in our efforts to zealously represent our clients that we lose sight of our duty to conduct ourselves with the dignity that is becoming of a professional and required by our oath as officers of the court.
1 During deposition, portions of Dr. Matava’s testimony were contradictory to the defendant physician’s conduct and testimony in the case.