SC Lawyer, November 2005, #6. Paying litigation helpers.

• Author: By John Freeman

South Carolina Lawyer

Ethics Columns.

SC Lawyer, November 2005, #6.

Paying litigation helpers

South Carolina LawyerNovember 2005Paying litigation helpersBy John Freeman President Kennedy once observed, "Victory has a thousand fathers, but defeat is an orphan." So it goes in big, expensive, hotly contested litigation where there is no recovery to split up. The client who signed your retainer agreement agreeing to pay the "expenses and costs of litigation," shot you a stunned, cold look upon leaving the courtroom and uttered just two words, "Appeal it."

A couple months before trial, your client commenced ignoring your invoices, and now you are sensing he is avoiding taking your phone calls. Meanwhile, invoices are streaming in from a variety of service providers, including court reporters who prepared deposition transcripts; two mediators, one for a court-ordered mediation and a second for a likewise unsuccessful mediation you and the other side's lawyer set up on the eve of trial; trial preparation consultants who conducted two mock trial focus group sessions for you and who prepared our trial exhibits; and both of the expert witnesses you used at trial. Meanwhile, time is running on the deadline for filing your notice of appeal, which will necessitate paying for a transcript of record and related expenses. You do not foresee your AWOL client stepping up to pay these costs.

The foregoing facts implicate a number of lawyering principles, some grounded in substantive law, some ethical, some based on common sense. These principles are not hard to see or comprehend, assuming the lawyer looking for them is clear-eyed. Unfortunately, too often the lawyer's vision is clouded by too much thought of self, specifically: self-pity, self-righteousness and a self-serving view of others' rights.

Get your court reporters paid. If anything is clear in the South Carolina law of lawyering, it is that lawyers must see that court reporters' bills are paid. It is true, of course, that trial lawyers function as agents for disclosed principals, and that, under agency law, where a contract is made with a known agent acting within the scope of his or her authority for a disclosed principal, the contract is that of the principal alone and the agent is not liable for the breach of such contract. See Green v. Industrial Life & Health...