Kudos to Meagher Geer appellate civil litigator Bill Hart for a moment that should make us all proud of our profession. Especially in this election season when we witness opportunism by some candidates who sacrifice their integrity to seek favor by changing their previous political positions to satisfy their changing audience. Mr. Hart delivered another reminder that there is a difference between advocacy in our justice system and advocacy in the political realm.
On October 8, Mr. Hart was advocating for his clients on appeal to the Minnesota Supreme Court in a significant medical malpractice case raising a serious challenge to traditional tort law causation rules. During the argument, the Chief Justice asked whether the case didn’t really present an issue of “abuse of discretion” in reviewing a trial court decision to exclude expert testimony at the urging of Mr. Hart’s client. The standard of review suggested by the Chief Justice would have been more favorable to Mr. Hart’s position, since it would involve the appellate court granting certain leeway to the trial court in ruling as it did.
During his rebuttal Mr. Hart, to his credit, did not seize this tempting argument. Apparently he did not do so because it would contradict the arguments and views of the parties up until that point, namely that the question for review was really whether the trial court applied an erroneous conception of the law in excluding the plaintiff’s expert. An error of law would be reviewed “de novo” by the appellate court, that is, with no deference would be accorded to the lower court’s ruling in favor of Mr. Hart’s client. A lesser advocate may have found this type of softball question too hard to resist. Some might argue, unwisely, that his duty of “zealous” advocacy required him to seize all possible advantages.
Mr. Hart took the long view, that integrity trumped opportunity, and in so doing told the court that they saw the question as one of whether the lower court properly applied the law. He probably also did his client more good, by retaining his credibility, and adding more weight to the real position his client was advancing.
The recording of the oral argument in this interesting case, Dickhoff v. Green, may be found here (use Internet Explorer browser (Chrome does not work)).