Preparing to Survive the Legal System, Part 2

By Dennis L. Rubin

For part 1 of this article, click HERE

RULE #8: REVIEW YOUR DEPOSITION SEVERAL TIMES

Potentially, the least enjoyable part of a court appearance is to properly prepare for the trial (unless you are an attorney making the big bucks). For me, there is a palpable level of stress involved with the trial preparation process. It seems like a “hurry up and wait” production from the start, and the court date never seems to arrive. Once the trial date gets close, large containers of “hurry up” are delivered to you and opened. Most everything else has to take a back seat or be handled after hours until after the trial is over. There is a tremendous amount of time that is wasted preparing for and defending the department in a legal action. But that is our legal, trial-by-jury system.

Consider being handed a 100-plus-page deposition, being asked to read it, and then being able to recall it for trial preparation. Your attorney will point out that you must be able to readily recall all of the information contained in your deposition answers, no exceptions. Your counsel will point out that the same questions are going to be asked again in the courtroom. There is nothing more intimidating then to be asked to read a passage from your deposition transcript by the plaintiff's attorney that you have sworn was the truth months ago, only to realize that it is different from what was just said under oath. For the jury to believe anyone, the individual testifying to the truth must be consistent throughout the questioning process. When the deposition and the live testimony are not in lockstep, there is trouble brewing for your team.

To illustrate, I have witnessed an opposing lawyer ask the government's witness if they had spoken to anyone about the personnel case that was being heard. The attorney presented the question in a way that was very abrupt and confrontational. I am sure that he was pleased when the witness indicated “no,” that he had not spoken with anyone about this sensitive lawsuit. Of course, the immediate followup question was asked: “How about discussing this issue with your attorney?” to which the witness replied, “Of course, I have spoken to my attorney about this issue.”

Without missing a beat, the plaintiff's attorney fires back, “So, Sir, your first response was a lie! Do you always lie when you are sworn to tell the truth?” This exchange left the witness dumbfounded and reeling to explain their intention, but the damage (undermining the witness’s credibility with the jury) was done. This is an old, but sometimes effective, trick. There is no replacement for being prepared when it is your turn to sit next to the judge with the all ears listening to your every word.

 

RULE #9: PACK YOUR PATIENCE

The wheels of justice do turn very slowly at times. I was involved in a case where the “alleged damage” occurred in 2004, and the trial was held in 2013. It took more than nine years to get this issue successfully resolved by a jury. Because it is likely that it will take a while for a dispute to weave its way into the courtroom, be patient. Keep all of your notes and information relating to the case to refresh your memory when it is finally time for trial. It almost seems unfair that it can take so much time before a case can be heard, but sometimes life is not fair. Attorneys may use the calendar to their client’s advantage. Knowing that practice of a long delay is a real possibility, be prepared, and don’t be surprise when you hear it’s time to report to court months or years later.

The other side of “patience is a virtue” is in the courtroom deals with long trial days. The judge will set the schedule that will be followed to the letter. In several cases, the presiding judge kept 10-hour days. In another case, the judge gave the jury a few days off during the week while motions were augured in his chambers. What this means to everyone in the trial except the judge and lawyers is: Pack a candy bar, because you are “not going anywhere for a while.” I suggest that a named defendant in a case block an entire week or two out of his schedule when the case gets underway. Plan on arriving early (do not take the chance of being late) and plan to stay into the evening on each trial day.

Remember, when you arrive at a federal courthouse (and most lower level courts) you will be required to check your cell phone and personal computer in at the security desk. It worked best for me to leave all of my electric devices at the home (or in the hotel room). Being out of “electronic” reach for a few days was, in fact, refreshing to a degree. The first time that the U.S. marshal took away my phone and computer and checked it in, it took a while to go through the security checkpoint; hence, the plan to simply leave all of that electronic stuff behind. It sped up the check-in process and allowed me to get through the screening quicker (never be late—remember). Further, I was nervous that my computer may not be at the checkpoint at the end of the day; leaving it behind turned out to be a good plan for me.

       

RULE #10: MAINTAIN "RADIO SILENCE"

As the court case gets underway, the judge will remind the jury to not to talk to anyone about the case (this issue is important enough to reemphasize at each recess). The jurors are under formal legal restrictions not to discuss or research the case at hand in anyway. The judge will point out that the jurors must focus on the evidence presented by testimony and exhibits in the courtroom alone. The personal opinions of the jurors about the case and any other outside influences are not to enter into the final judgment of the facts in a case as well as the decision-making process of determining innocence or guilt. The goal is to remove all outside distractions from improperly changing the results of the jury’s deliberative process as required by the rule of law.

I suggest that this judicial advice is appropriate for all involved in the case. Of course, the defense team will discuss issues between defendants and their attorneys. However, I recommend not to go outside of that small circle of folks without direction from your counsel. It has been impossible for me to determine who the folks are that sit in the courtroom during the proceedings. Are they media reporters? Other interested parties (relatives of those involved in the case)? Other attorneys viewing a case to be better prepared for the next one? Without knowing some of the other players in the courtroom, simply keep your mouth closed and your eyes focused forward. It will beat being the headlines in the local paper, giving your opinion about the case as though your comments were facts. Wait for the close of the case and the jury’s decision before discussing anything outside your attorneys in an active case.

 

RULE #11: TAKE A BREATH AND RELAX

In many cases, the defendants did not do anything wrong. So, relax and realize that you should be directing your brain power to resolving the issues in dispute. Do not waste your time and energy on guilty feelings unless you did something intentionally wrong. It seems like only yesterday I received a call from the city manager’s (CM’s) office; the voice on the other end directed me to come to the CM’s office as soon as possible for an impromptu meeting. So, of course I went to the boss’s office right away. The staffer didn’t describe what the meeting would be about, but I could tell it was important.

When I arrived at City Hall, I was escorted into the boss‘s corner office. Sitting on the circular small conference table was a copy of a letter that had been forwarded to her by the personnel director. The letter was from the U.S. Department of Justice (DOJ) describing the “right to sue.” The city was copied on this letter that was addressed to one of the firefighters. The member had filed an Equal Employment Opportunity complaint months before demanding to be promoted to battalion chief. The CM was very upset and wanted to know what I was going to do about this situation now that the employee had the right to sue the city? After a closer inspection and a second read through, the “right to sue” letter indicated that the claim was without merit.

The next call was to the city attorney to report downstairs to help resolve this emerging and potentially disruptive communication. The CM was already upset with the chief (me) based on putting the city in this position with the DOJ. In a few short minutes, the city attorney put the notice into its proper perspective. First, he pointed out, that everyone has the right to sue. However, the DOJ reviews discrimination claims to determine if the case has “merit.” In the cases that have “merit”, the DOJ is willing to assist the plaintiff in that there is evidence that discrimination did occur. In fact, this notice of the “right to sue” expresses that the claim is without merit and the DOJ will not be intervening to assist the plaintiff. The city’s top lawyer goes on to say that this letter is the best news possible and that congratulations are in order for Chief Rubin and his staff in the first phase of this case.

I went from the “doghouse” to the “penthouse” in just a few minutes. I asked the city manager if she had any similar experiences (right to sue letter) in the past? She indicated that she had not, but was pleased that the review determined that this specific claim was without merit. Needless to say, so was I; we both learned a lesson about discrimination claims that day. The case took years to wind its way through the legal system, and the city prevailed. Being upset about this letter and calling me over so abruptly was not necessary and reinforces the notion to take a breath and relax (unless you did something intentionally wrong). You will need your brain power to resolve issues, so don't waste it on feelings of guilt that will not resolve anything.

If you were wrong and out of line on an issue, admit it to your attorney. Never lie to cover up anything.(1) If you opt to cover up routine issues, most likely you will get caught and terminated for lying. Not being truthful is grounds for termination at every place that I have worked. I cannot overemphasize the concept of telling the truth, the whole truth, the first time and every time. If you did something stupid, get ready to “take your medicine” that comes along with doing dumb stuff.

 

RULE #12: WHEN THE CASE IS OVER, IT'S OVER (EXCEPT FOR APPEALS!)

When the judge or jury provides a ruling, move on. Act as though that final decision is the law (because it is) and deal with the results. Sometimes, the final decision will not be what you wanted. Once, I was left with an active lawsuit dealing with seven line firefighters demanding to be able to wear beards. Indeed, in 2007, seven members of a major metropolitan fire department were demanding to be able to have facial hair that interfered with the skin to rubber self-contained breathing apparatus face piece seal!

Years before I had arrived, the case had been lost in a lower court in favor of the members having beards. Their court victory flew in the face of all of the scientific data and mandated face piece fit testing. When the Appellate Court upheld the lower court’s decision, I was appalled and could not believe the higher court did not overturn the ruling. I was poised to disregard the judge’s ruling and take these seven firefighters off of the fire line.

My thought process would be to protect the seven bearded members and the public; did that ever upset the city attorney! He ensured me that if I would like to be incarcerated to feel free to disregard a federal judge’s order. My focus completely changed. The “bearded seven” were allowed to continue being front line firefighters. The only other option here was to work toward appealing this case to the U.S. Supreme Court. When I left this agency, this process was underway, and I was unsure of the status of this crazy case at this time. However, the point of this rule is to move on when the case is decided. Whether you liked the judicial resolution to the dispute or not, move on. It is best for all concerned, and don't be a gloating winner (see Rule #13) or a sore loser. As the leader of your agency, you are expected to be professional regardless of the outcome.

Further, do not retaliate in anyway against anyone in anyway, ever! Retaliation is a very serious charge and comes with some very serious penalties. It may feel good to transfer someone that you don't like or move that person to a “day work” spot. However, if the member can prove that you have intentionally retaliated against them because of a legal action, you will bolster their case against the department (and yourself). If you consider this action after the court has resolved the case in question, I would suggest that you may have to do a very unpleasant second trial that could have been completely avoided. If you take action against another member with the intention of electing revenge, don’t do it! Perhaps a visit to a batting cage or driving range would be a much more appropriate avenue to release your pent-up hostilities.  

 

RULE #13: NEVER GLOAT

Much like in sports or any competitive field, no one likes a person that celebrates excessively or gloats. This is a tough rule to follow; the emotions that build up along the way are difficult to release when a case is over. However, try your best to be a great sportsperson regardless of the outcome. If you get carried away following a victory, the fall may be a long one should another case not go your way. To avoid this, resolve our stress by following the advice in Rule #12; do something that you enjoy that is physically demanding. Do not overreact with your mouth; it will make you look dumb.

I recommend avoiding the news folks all together just after the conclusion of a lawsuit. The emotions are running high, regardless of the outcome. If would be much better to comment in a day or two when the reaction to the decision has completed registered and enough time has passed to put the resulting impact into perspective. It may be impossible to avoid the media after the case is over. I would suggest that you keep your comments very short and measured. Try to prevent any emotions to be reflective in any news reports. As Joe Friday always reminded us: “Just the facts, ma’am.”

The best “gloating” of all is a final judgement statement that reads, “IT IS HEREBY ORDERED AND ADJUDGED that the Plaintiffs take nothing, that this action be dismissed, and that the Defendants recover of the Plaintiffs the costs of this action.” In other words, a complete and total victory goes a long way toward personal satisfaction. When this decision is made by the jury, the chief does not need to say a word, because the jury system has spoken.

The first rule of surviving the legal system is the most important one. In today’s fire service environment, take every action that you can to avoid legal disputes. However, sometimes the chief will find himself in the middle of a legal dispute that will end up in a court of law. Know what steps to take to prepare for this process and, just like commanding a fire, understand your responsibilities and execute those duties to the best of your ability. Build a positive relationship with the city/county attorney’s office before any type of action is filed against the department. I would regularly meet with the law department and request various training programs to help better guide and lead the agency. For instance, the law department will be the lead agency and final authority relating to enforcing the Freedom of Information Act. Once a year, I ask for a briefing for the senior staff members from the law department on this topic. Of course, there are several other topics that would be discussed by the attorneys to keep us out of trouble. Each time that I interacted with the law department, the easier that process became and the more familiar we became with each other’s operations. This is just one of several relationship building strategies. Make sure that you have an open and effective line of communication with your organization’s law department.

The end result of our entire legal process is the nothing short of the greatest system ever known to humankind. Never be fearful to do your job, but do it well and within the limits of your authority. Apply a large dose of common sense in the decision-making process and never use your authority in a negative way to retaliate against anyone or to punish someone that you do not like. If you follow all of these simple rules and focus on doing the best job that you can as the chief, you should minimize your legal troubles.

 

Dennis L. Rubin is the principal partner in the fire protection-consulting firm D.L. Rubin & Associates. His experience in the fire and rescue service spans more than 35 years. He has served as a company officer, command level officer, or fire chief in several major cities, including Dothan, Alabama; Norfolk, Virginia; Atlanta, Georgia; and Washington, D.C. He served on several committees with the International Association of Fire Chiefs, including a two-year term as the Health and Safety Committee chair. He is a graduate of University of Maryland. He also hosts a monthly radio show on Fire Engineering Talk Radio called "Contemporary Issues."

 

 

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