In a recent claim, another Workers’ Compensation judge noted that counsel used terms such as “ridiculous,” “asinine,” “fraudulent,” and “untruthful,” in describing their opponent’s positions. This brought to mind that, in one of my first cases, the lawyers exchanged descriptions of “fool” and “idiot” when referring to each other. In my short time on the bench, I have observed attorneys whose cross-examination strategy seemed geared more toward personal belittlement of the witness than rebuttal of the witness’s direct testimony.
My immediate reaction to the above-described instances that I personally observed was discomfort. The offending conduct focused my attention more on the attorney than on the point he or she was attempting to make. I considered the conduct to be beneath the dignity of the legal process, and interrupted the proceedings to make sure counsel understood that I expected them to present their cases in a professional manner.
I represented clients in court for more than 30 years before I became a workers’ compensation judge. I recognize and fully support an attorney’s duty to zealously represent a client. I also recognize and, as a judge, am committed to enforce an attorney’s duty to foster respect for the legal process by presenting his or her client’s position in a professional and respectful manner.
As a trial attorney, I observed that the more effective and better-prepared attorneys made their cases without grandstanding and belittling their opponents. A veteran attorney gave me this advice about trial strategy: “If you don’t have the facts, argue the law; if you don’t have the law, argue the facts.” Maybe there is a corollary to the above rule: “If you have neither the law nor the facts, try to make the other side look bad.”
My grandmother rarely traveled more than 100 miles from her Cumberland Plateau roots, never learned to drive a car, and was nearly 50 before she enjoyed the benefits of electricity and indoor plumbing. Proving that wisdom stems not from a smartphone, she taught me a valuable lesson applicable to the practice of law: “You get more flies with honey than with vinegar.”
So I will leave you with an admonition she often gave me: “You kids stop scuffling and play nice.”