Keenan Trial Blog

Don Keenan Introduces Pat Malone

It’s my privilege this week to introduce fellow Inner Circle member, as well as fellow Irishman, Pat Malone from Washington, DC.  Pat is known in the Inner Circle as one of the “great minds,” y'all know I'm not a member.  Pat has a strength many of us don't, he writes and speaks simply.  He has good reason because he started out as a journalist working many prestigious positions including the Miami Herald and the Washington Post.  He's a frequent contributor to the Huffington Post.  Y'all know Pat best as the co-author of Rules.  Be on the lookout for a new book that will not disappoint.  So here’s Pat:

 

Just about any time a plaintiff’s lawyer settles a substantial injury case, the defendant’s attorney comes in at the 11^th hour with one final settlement term: a confidentiality clause that bars both the injury victim and the plaintiff’s lawyer from talking publicly about the facts of the case.  Most lawyers roll over for these without a second thought.  But we don’t have to.  Our clients and our law practices, and even the system of justice, will be better off if we firmly resist secrecy agreements in settlements.  And we have strong tools in lawyers’ ethical codes to give us the leverage to say no and stick to it.

Why are defendants so keen on secrecy? Often it’s because they want to make it harder for future litigants to get access to evidence – hot documents, strong witnesses – that can be used against the same defendants.  This is precisely why many secrecy clauses in settlement agreements violate the Rules of Professional Conduct that govern lawyers in all 50 states (and the District of Columbia too, where my practice is based).  Nobody has a right to hide evidence.

The ethical codes also have a strong tilt toward letting the public know which lawyers have real expertise in the kind of legal problems that a layperson might face, and that means lawyers with experience against the same defendant in similar circumstances.  So that’s another reason why secrecy agreements, which force plaintiff lawyers to hide their light under a bushel basket, are ethically disfavored.

You can read more details about constructing a strong ethics-based argument against secrecy agreements in your own case in an article I wrote in 2010 with law professor Jon Bauer, published in Trial magazine. I put the piece on my website here: http://www.patrickmalonelaw.com/docs/unethical_secret_settlements-trial-sept2010.pdf

Here’s one tip for avoiding last-minute pressure from the defense to cave into a secrecy agreement: Be proactive. Tell the defense counsel at some appropriate point – such as with any settlement demand letter or in a pre-mediation communication – that you will not agree to secrecy because of the ethical issues.   This can be one item on a list of settlement conditions.  (Another advance condition I often mention is that we won’t negotiate terms of a structured annuity until we first agree on how much the defendant will pay in cash, and then we will do the structure only at the plaintiff’s option.)

I learned the wisdom of advance settlement terms from Don Keenan, who is at the cutting edge of this and so many other “best practices” in the plaintiffs’ bar.

Warning: To adopt this “Just say no” philosophy on secret settlements will make you counter cultural, and it’s not easy to do that when your peers are taking the easier path. The more of us who adopt this approach, the easier it will be for those who come later.  Make no mistake: It’s easy to rationalize accepting secrecy. You want to get the money, make the client happy, and avoid a stressful and expensive trial.  The reasons to resist secrecy all have a longer-term focus, and we all know that short-term benefit often trumps long-term harm.  So I just want to end this piece by listing what we gain long-term by saying no to secret settlements:

1.     We help future litigants by letting them know where they can find evidence to help their cases.

2.     Our clients are freed from secrecy clauses that are a weapon of harassment for vindictive defendants.

3.     The justice system lives up to the ideal of tort law. If the injury prevention lessons of a case are hidden behind a veil of secrecy, then we have undercut the only reason for the fault-based system that makes sense: To deter future bad conduct and make the world safer. To go down the road of compensation as the only goal is to buy into the rationale of the tort deformers who want no-fault and health courts where everyone gets some pittance of recovery because “compensation” is their only goal.

4.     Plaintiff lawyers can market their own practices better by broadcasting the key details of how they won a good settlement.

Think of it this way: If you’re just a compensation lawyer, you’re headed toward extinction. Only by being accountability lawyers and public safety advocates can we hold up our heads with pride.

 

NEXT BLOG:  Demonstrative Evidence: A Way To Reduce Costs. The Down Low.

 

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NOTE: 

About two months ago I ended a blog by asking y’all if anyone would be willing to write a review on our new DVD "The Ball Method of Opening Statements."  Someone from every single State volunteered.

Because of that good experience I want to do the same thing with our DVD “Keenan Method of Witness Preparation.”  So if anyone wants to write a review for publication in his or her local trial lawyer journal or listserv I will have Talia send you a free copy of the Witness Preparation DVD.  Since we've sold over 1,000 Witness Preparation DVDs, if you already have a copy then you can chose to get one of the other two DVD's we have "Opening Statements" and "Voir Dire."  Simply send an email to tthornton@keenanskidsfoundation.com or post a comment here.

The DVD contains actual Witness Preparation of five separate witnesses ranging from auto, medical negligence, premises and takes you through the seven step template.