By Dr. Ken Broda-Bahm:
Here's a "don't do that" lesson. After calling his client and her husband "toothless cooties," in what he thought was private communication, well-known Colorado plaintiffs' attorney Chad Hemmat suffered a $2 million judgment (including $1.5 million in punitive damages) when the client took him to court over inadequate representation and, the former client claimed, for undervaluing the case and pressuring a quick settlement. The story, covered in the paper edition of the January 21st Colorado Law Week and in our city paper, Westword, caught my attention because it brings up a common dilemma for active litigators. No, that dilemma is not how to represent toothless cooties (and I have to admit that I'm not really familiar with that expression...but it sounds bad).
The dilemma is how litigators ought to take care in delivering critical messages to their clients. You see, that was Hemmat's defense for the statement. While he admits that he chose his words poorly (but colorfully), his claim in trial was that he was just frankly evaluating how his client would be perceived by a jury. "You want me on that wall," he argued, "You want me trying to decide how you will be portrayed." And that is clearly the right role for a trial lawyer. But, even without the colorful language, it is a role that needs to be approached with a great deal of care. That is because there is a natural conflict between the lawyer's role as an advocate ("I believe in your case and I'll be your champion...") and the lawyer's role as a counselor ("...but here is the reality of what you're facing at trial"). The jury delivering the recent verdict against Hemmat, for example, probably had little trouble concluding that anyone who would communicate with such apparent disrespect probably wasn't a zealous advocate for his client -- a perception likely reinforced by the fact that the client received only about $20,000 (compared to the firm's $27,000) in the settlement. Still, it is easy to see that the client's dream of a multimillion dollar jury verdict may have been just that, a dream. So how does a responsible attorney convey that reality?