Wednesday, May 13, 2009

Lessons from the Godfather Trilogy

The following article of mine, which first appeared in the August 29, 2005 Pennsylvania Law Weekly, applies famous quotes from the Godfather movies as golden nuggets of practical advice for lawyers in their handling of cases. I thought I would give it another run here given the previous enthusiastic response to the article and the later CLE seminar I gave on a few occasions on the same topic. Hope you enjoy it.

What I Learned From the Corleone Family:
Lawyers can find universal principles and practical advice in The Godfather films

By Daniel E. Cummins, Special to the Law Weekly

Few movies are as revered or have reached the iconic status in American culture as the movies that make up The Godfather trilogy. Obviously, the brilliant acting by numerous icons of American cinema and Francis Ford Coppola's direction play the major part in achieving that status. But perhaps even more appealing is the writing, which has generated many lines that can be considered not only quotable but also, in a broader sense, universal principles of life.

These universal principles are applicable to all walks of life from the mob underworld to our noblest of professions and can provide practical instruction to all who are open to such advice. An application of some of these universal principles to the practice of law offers some sound advice and instruction.

"It's not personal, Sonny. It's strictly business." Michael to Sonny in The Godfather

There may be nothing more important to the practice of law than the principle that decisions to be made should never be motivated by personal or emotional animus, but rather should always be the result of a sound, objective, business-like decision-making process. All too often, attorneys take the actions and adverse positions of opposing counsel personally and retaliate without first thinking through and formulating an appropriate response on an objective basis and in accordance with the law and facts of the case.

The practice of law has unfortunately deteriorated to the absurd and reprehensible extent that formal written rules of civility are apparently required in an effort to maintain order between counsel. It is questionable as to whether any other profession has or requires that basic rules of civility and courtesy be formally acknowledged or, worse yet, put in writing. A reason that such written rules may have become necessary for attorneys is that counsel are indeed ethically required to be zealous advocates for their client's causes of action, which, in turn, can unfortunately invite emotions and personal animosity into the decision-making process and in dealings with opposing counsel. The key, of course, is to rise above such personal issues and emotions and keep handling matters in a strictly business-like manner.

Litigating attorneys should also never take on the emotional trappings of their clients and should never let their personal opinions of opposing counsel or the quality of that attorney's case get in the way of an objective application of the law to the facts of the case presented. In the big picture, attorneys are the representatives of their respective clients who are engaged in a dispute that cannot be resolved amicably. The pros and cons of a case cannot be properly and professionally evaluated if one's judgment is clouded by emotionally charged and negative feelings toward another attorney, that attorney's client, or that attorney's case or argument. Accordingly, if you find yourself unable to separate yourself from an emotional opinion of the case, it may be wise to run the case by another attorney or, even better, a lay person for a fresh and objective viewpoint.

It is particularly important to remain objective when evaluating cases for settlement purposes and in engaging in settlement negotiations. Emotions have no place during settlement negotiations but can run high and get in the way of an objective evaluation of a case's range of value. Ultimately, in all cases, it's not personal, it's strictly business.

"Never hate your enemies – it affects your judgment." Michael to Vincent in The Godfather, Part III

A corollary to the general rule that negative emotions should have no place in the litigation process is that one should never allow matters to get personal with the opposition. When one allows their emotions to intrude into their dealings with opposing counsel, the ability to evaluate any and all issues that arise is clouded by such negative feelings.

As difficult as it may be, one must attempt to disassociate and cut out any negative feelings or animosity (even when such emotions may be warranted under the circumstances) toward opposing counsel, an opposing client, a judge or whomever one is dealing with. Only then can a proper evaluation and handling of the issue or case be completed.

For example, some attorneys may feel they are being personally attacked when they are presented with a motion to compel discovery responses. Obviously, in cases where there are no objections at issue, it must be considered that the motion may be warranted as such a motion would not have been necessary if the discovery responses had been timely produced. Consideration should also be given as to whether the attorney filing the motion was compelled to do so by a superior in his or her firm or by the client.

In terms of the attorney filing a discovery motion, it is obviously always good practice whenever possible to send a warning letter to opposing counsel of the intention to file a discovery motion at least 20 to 30 days ahead of time so as to allow time for the response to be produced. It is also good practice to agree to select another day to present the motion if the date selected is not good for the opposing counsel. In the end, all efforts should be made to resolve the discovery issue before burdening the court with petty and tangential issues to decide.

With all issues presented by a case, although sometimes easier said than done, one should not allow an emotional viewpoint to cloud one's evaluation of the case presented. This is not to say that an attorney shouldn't be passionate or should refrain from forcefully presenting her position on the case at hand. The key, rather, is to attempt to prevent any clouding of judgment by an emotional response to the case whether it be a positive or negative response. After all, remember what happened to Sonny Corleone when he allowed his emotions to cloud his judgment and get the best of him.

"Keep your friends close, but your enemies closer." Michael to Pentangeli in The Godfather, Part II

No advice may be as difficult to heed than the caution to keep your enemies or adversaries close. Unfortunately, there are some adversaries in the practice of law who thrive on petty confrontation and routinely taking matters to a personal, negative and vexatious level. Such attorneys seem to enjoy attempting to push the buttons of opposing counsel and disrupting the normally smooth handling of cases. While there is no place in the practice of law for such boorish behavior, there is usually no recourse against the same, and one must be prepared to deal with such attorneys effectively in order to provide his clients with the representation they are entitled to.

Fortunately, these types of attorneys are the exception and not the norm. It is best to remember that typically these troublesome attorneys are lacking in an important quality of some sort, whether it be of some personal nature or an inability or unwillingness to do the work required by the case, including but not limited to researching and understanding the applicable law and rules of procedure. Perhaps out of an unconscious fear or some feeling of inadequacy, such attorneys may be compelled to lash out and attempt to compensate in negative ways designed to deflect attention from these deficiencies by engaging in personal attacks or making the litigation process unnecessarily difficult. While the inherent notion of self-preservation compels us to steer clear of such attorneys wherever possible, we inevitably have to deal with them when a case calls upon us to do so.

One way to deal with such "enemies," or all adversaries for that matter, is to keep them close. This can best be accomplished by knowing the facts and the law of the case better than your adversary does. To get a quick initial grasp of the law of a case, one can turn to the Pennsylvania Law Encyclopedia. In terms of an analysis of almost all substantive and procedural issues that may arise in civil litigation, there is no better resource than Stephen Feldman's The Pennsylvania Trial Guide. Cases on point with yours may be found in the more specific Negligence Instant Case Finder by Glenn A. Troutman. Furthermore, in automobile accident and insurance litigation, one can quickly secure an understanding of the applicable law from a review of Milford Meyer's Pennsylvania Vehicle Negligence and Pennsylvania Motor Vehicle Insurance 2d., by James R. Ronca, Leonard A. Sloane, David L. Lutz and Timothy A. Shollenberger, and edited by Bill Mabius.

In terms of the Rules of Civil Procedure and forms related thereto, there are no better resources than Goodrich-Amram 2d Procedural Rules Service With Forms and Dunlap-Hannah Pennsylvania Forms.

By having a full understanding of the facts and knowing the applicable law and rules of procedure at the commencement of a case, one can more effectively control a vexatious opposing counsel and move the case forward to its inevitable conclusion, whatever that may be. It is important to also remember that a case can only move forward by keeping opposing counsel close with continued communication.

As aggravating as opposing counsel may become in such dealings, it is best to remain in control of your own emotions and hit them with kindness, good humor and rational explanations supporting your position. Always confirm everything in writing with these types of attorneys as a further method to keep them under control. Again, a positive way to view such a difficult situation is to remember that each communication will move the parties one step closer to the eventual resolution of the case, at which point you will no longer have to deal with that attorney.

Thus, as enjoyable as the practice of law may be with your colleagues, the real challenge of the profession is to see your client's case through to its desired and just end by keeping your adversaries close and under control.

"Fredo, you're my older brother and I love you. But don't ever take sides, with anyone, against the family again. Ever." Michael to Fredo in The Godfather

The Rules of Professional Conduct require counsel to put their client's interests above all others in accordance with the law. An obvious principle, as expressed by Michael Corleone to his brother Fredo, is that one should never take actions or positions detrimental to the interests of the client unless, of course, you are ethically required to do so. Additionally, although the opposing case or client may be sympathetic, attorneys are ethically bound to put such emotions aside and to evaluate cases on an objective basis in the best interests of their own client. Expressions of doubt and/or a lack of confidence shown by an attorney in his or her own client's theory of the case or argument can be damaging and, at times, fatal.

A consequential benefit of an unwavering loyalty, confidence, and belief in your client and his or her cause of action is credibility in the eyes of opposing counsel, the judge, and/or the jury. If an attorney does not publicly and convincingly exhibit his or her own belief in the client's case, no one else will. Credibility of the attorney and of the case presented will also be enhanced by raising and explaining away any weaknesses of the case as opposed to attempting to hide or ignore the same.

Furthermore, part of fully representing your own client is placing yourself in the shoes of opposing counsel and immersing yourself into the facts of the case and the theory of the case from the other side's perspective. Unless and until you do so, you cannot fully appreciate the strengths and weaknesses of your own case.

Accordingly, when preparing your client for a deposition or trial testimony, you should submit the client to a possible cross-examination in an effort to prepare him or her for the same. While preparing for any oral argument for the court, one should first prepare the argument for your own client, and then compose the argument for the opposition. Only by doing so, can one see and address the problems and weak points in your own argument. Additionally, at oral argument (and at closing argument at trial), it is wise to end your argument by advising the judge of the opposing arguments that you anticipate will be made and then explain to the judge why such arguments should be rejected. In doing so, you will raise your credibility by showing that you are not steadfastly and blindly presenting only your side of the case, but rather presenting both sides of the case and attempting to convince the court or jury why your client's position is the fair and just position.

"I'm gonna make him an offer he can't refuse." Don Corleone to Johnny Fontaine in The Godfather

In terms of settlement negotiations, it may be said that you can not sell something to someone they do not want to buy. When negotiating with opposing counsel, one should again put themselves in the position of that opposing counsel or client and attempt to frame any settlement offers in the best light from that perspective.

For example, the value of settling a case now as opposed to after many more months of litigation or awaiting an opening in the court's schedule for a settlement conference or trial can be emphasized. The benefit of settling sooner in terms of interest on the settlement money or the effect on the potential for delay damages can be raised. Where the parties are engaged in a non-binding mediation and have reached an impasse, perhaps the offering of paying for the mediator's services by one party can spark further discussions to an ultimate resolution. By thinking of settlement from the other party's perspective and being creative and positive in framing your settlement offers, one may be able to effectuate a settlement of a case within one's range of value.

In trying to settle a case, it must be remembered that emotions have no place in negotiations. If at all possible, check any emotions generated by the case or your interactions with the opposition prior to entering into any settlement negotiations. All attempts should be made by both parties to participate in the settlement discussions in the most objective and business-like manner possible.

Attorneys should also take steps to control their clients and attempt to convince their clients to also put their emotions aside and to view the case in a business-like manner and in accordance with the attorney's advice as to the value of the case. Your client's reasonable and fair settlement position should be established prior to commencing negotiations and, if you are not able to reach a resolution on your terms, the parties should simply move on to the next step in the litigation process. One way or another, the case will inevitably conclude at some point.

"I have always believed helping your fellow man is profitable in every sense, personally and bottom line." Michael to reporters in The Godfather, Part III

Although Michael Corleone may have issued this statement with a sense of irony, it cannot be denied that helping your fellow man is indeed profitable in every sense. In addition to assisting all of our clients with their legal matters, an attorney may also profit on a personal level by taking on a pro bono case within the scope of their expertise wherever possible. Typically, an attorney may have their name placed on a list in the county's pro bono office with an identification of that attorney's area of expertise. In most cases, the pro bono office may call an attorney when a matter comes within that attorney's area of practice and the attorney may consider whether or not to take such a case after a conflicts check. Obviously, the handling of a pro bono case is not only looked upon favorably by all, but is also personally gratifying.

Equally gratifying is the participation in and completion of volunteer activities in the community. There is never a lack of opportunities to do so whether such volunteer participation be needed by the Young Lawyers' Division of your county bar, your church, your town, or any other entity.

In addition to the altruistic reasons in support of volunteering in the community, such activities have the consequent benefit as a source of networking and advertisement. By participating in charitable activities, one can come to know many different people as well as have your name or your firm's name disseminated to the public in a positive light. Participation in such activities may also go a long way in slowly but surely improving the always tarnished public image of attorneys.

Ultimately, by participating in volunteer activities and helping your fellow man, one can obtain a great sense of accomplishment and personal fulfillment comparable to none.

"[A] man who doesn't spend time with his family can never be a real man." Don Corleone to Johnny Fontaine in The Godfather


While the demands and pressure to bill an exorbitant number of required hours or to spend many hours developing plaintiff's cases is great in the practice of law, there is no opportunity to replace missed moments with one's family. Many an experienced attorney with grown children have lamented the times they missed when their children were infants and toddlers and the times they could not make a little league game or recital all because they were so engrossed with the practice of law. Life is short and there are no second chances to recover such priceless moments.

Whenever possible, a balance between work and life outside of work should be sought and encouraged. An attorney who spends most or all of his waking hours in the practice of law runs the significant risk of becoming a one dimensional person and ultimately burning out. It can be said that attorneys who develop their life outside of the practice of law, particularly with their families, but also in terms of their hobbies, recreational activities, and in exploring creative outlets, are more apt to have a higher productivity level when it comes to work.

Obviously, the practice of law is an extremely stressful 24/7 profession. Some attorneys proudly (and sadly) boast that they rarely take time off from work. Such an attitude may prove counter-productive in the end. Spending and enjoying more time with one's family will tend to serve as a release from the pressures of work and lessen one's overall stress level which, in the end, results in a more healthy lifestyle overall. A more healthy lifestyle, in turn, may render you a more productive and efficient attorney. In the end, all aspects of your life both in and out of work will benefit.

Conclusion

An understanding and application of the universal principles enunciated by the great characters in The Godfather Trilogy to one's practice can improve one's abilities and may also serve to ease the stress generated by the profession. All in all, with the practice of law as demanding as it is in and of itself, an effort should be made by attorneys to deal with each other in an objective and professional manner without descending into personal animosity and attacks. Ideally, we should treat others as we desire to be treated and should maintain positive arguments supported by the law and facts of the case as opposed to attempting to pursue or defend a claim through negative and emotionally charged tactics or personal attacks. In the words of Clemenza from The Godfather, we should metaphorically, "Leave the gun. Take the cannoli." In the end, by leaving behind a negative or personal handling of a file and instead taking positive business-like approach to all cases, the practice of law as a whole will benefit.

This article is reprinted here, with permission, from the August 29, 2005 issue of the Pennsylvania Law Weekly.(c) 2009 Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved. Please contact the author for permission to reprint or duplicate this article.

No comments:

Post a Comment