“Has the judge lost her mind?!” Our CEO screamed as I walked into his office.
“She can’t possibly think we would ever agree to this drivel!” he continued. “How did she even pass the bar?!”
Our hospital had recently found itself on the losing end of a sharply worded judicial rebuke. A very sharply worded rebuke.
We were marred in the midst of a particularly heated lawsuit and were, rather painstakingly, working our way through discovery. We withheld certain documents under the color of trade secrets. Opposing counsel disagreed. And off to the judge we went.
The judge, to her credit, advised both parties to get back to the table and solve the matter without her intervention. She also strongly advised our hospital in particular that we may be taking a few liberties with the trade secrets designation and suggested we revisit our position on many of the documents.
All in all, a fairly routine meeting with what I deemed to be a relatively reasonable and fair judge.
However, after I briefed our CEO on the meeting, he refused to budge.
He was adamant we refrain from turning over any additional documents unless, and I’m quoting here, “a judge locks him up in jail.”
Now, you don’t have to be an attorney to figure out what came next when we refused to give an inch and went back to judge a week later having made no progress in resolving our discovery dispute.
We dutifully presented the same — the exact same — arguments the judge had found unpersuasive seven days ago. She flashed a look of bewilderment and anger to which I could only answer with a sympathetic shrug as she cast us from her chambers.
Nary two hours later, both parties received the order I had predicted would come. The one using such colorful terms like “obstructing justice” and “in my time as a judge, I’ve never seen such…”
It also included a very poignant reminder of her powers and the consequences of being held in contempt of court.
Yet dispute this rebuke — one of, if not the, harshest one I have seen in my years as a practicing attorney — our CEO remained steadfast in his decision to continue to withhold the very documents the judge had ordered we produce.
In that moment, I had a decision to make. After he was finished dispensing the vitriol and hate he had for the judge, I could either accept his wishes as the client’s demand, or I could push back and take a moment to ensure he fully appreciated the gravity of the situation.
Thankfully, I chose the later course of action and took a moment to explain the severity of his being held in contempt not only on him as an individual, but on our organization as a whole. While I could tell my counsel was the last thing he wanted to listen to in the moment, he agreed to take the evening to think it over and revisit it in the morning.
Thankfully he called me bright and early the next morning and acquiesced to the judge’s demand.
Although this is an admittedly egregious example of the demands of working in-house, it is one I think is worth sharing.
Thankfully I had built up enough goodwill and credibility with our CEO that he knew I was not arbitrarily capitulating to a judge’s demand, but rather that I really had his, and our organization’s, best interest at heart.
As in-house counsel, your duty to protect your client is absolute. Even if they may not immediately appreciate it.
Stephen R. Williams is in-house counsel with a multi-facility hospital network in the Midwest. His column focuses on a little talked about area of the in-house life, management. You can reach Stephen at stephenwilliamsjd@gmail.com.
Being Your Own Worst Client curated from Above the Law
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