OPINION(S)

A [mostly] Relentless Pursuit of Professional Perfection

Chris Knopik ’83 and Joe Varner ’83
Knopik Varner Moore

Varnick and Knopick '83One of us owns a Lexus. It’s a fantastic machine but, with apologies to the company, its famous “relentless pursuit of perfection” better remain relentless for a while longer. We can relate.

Our relentless pursuit of perfection began in the back row of Caplin Auditorium in the early fall of 1980 during orientation for our incoming law school class. We were certain the back row was reserved for the coolest, hippest, smartest, and best looking men in the new class … and that is why we sat there and that is why we met there. We soon realized that we weren’t nearly so cool, hip, smart, or handsome as we thought, but it took longer to recognize that day as our first step in our (mostly) relentless pursuit of professional perfection.

Today, a startling 27 years later, we practice together in a small firm of trial lawyers in Tampa, Florida. The highs and lows of our personal and professional lives have been experienced, more or less, together, by phone or e-mail when we practiced in separate firms, now in person in our current firm when we handle hearings, collaborate on legal writings, or wait anxiously during jury deliberations … or when offering off-the-cuff lounge-lizard versions of popular songs to our bewildered staff. Through it all, we have been joined by a common belief that if we try hard enough and long enough, we can achieve the highest possible level of client service, while maintaining our strong sense of integrity. Like those Lexus engineers, we remain in pursuit and, like any automobile, be it Lexus or Kia, we know we will encounter bumps in the road. Those bumps take many forms and offer many lessons.

“The rule of the hole.” We fancy ourselves trial lawyers, but we’ve had our courtroom moments that undoubtedly tried our clients’ patience and our mettle. One memorable occasion occurred during what I believed to be a stellar, eviscerating cross-examination of a key expert witness. As the cross-examination hurtled toward the imagined crescendo, the patient trial judge summoned counsel to sidebar. In pointed remarks, the judge stated, “Are you familiar with the rule of the hole?” Faced with a blank stare, the judge continued, “Sometimes when you are digging a hole, it’s best to put away the shovel.” After stepping back from sidebar and asking enough harmless questions to save some measure of dignity, I put down the shovel.

“Try a little tenderness.” Although we pride ourselves on minimizing unnecessary strife during depositions, we have occasionally risen to the bait offered by opposing counsel. What we have learned (we hope) is that many such situations are better resolved with a smile than a snarl. Several years ago, a more experienced lawyer was making numerous improper speaking objections. After politely asking him to stop and finally warning him that I would take the matter up with the judge, he raised his voice and said, “I’ve been practicing 25 years and I don’t scare easily.” I assured him I was not trying to scare him and returned to my questions. During the next break, I said to him, with a smile, “Bruce, I’ve been practicing 15 years — how long until I can use the ‘I’ve been practicing so many years line?’ ” He smiled back and said, without hesitation, “10 more years.” We had no problems after that.

“Scouts know best.” When we were younger and working extraordinarily long hours, we knew with certainty that wisdom born of experience would allow us to take effective depositions on a moment’s notice and construct withering cross-examinations of key witnesses on our feet in the courtroom. Now, all these years later, we still wait for that “wisdom born of experience” to kick in. In the meantime, we continue to consciously over-prepare for all matters, large and small, ever mindful that the Scouts had it right: “Be prepared.”

“Some things are better left unsaid.” Trial practice is fraught with friction and packed with pressure. The pressures emanate from client expectations, high personal standards for performance, financial pressures, and the realization that our opponents sometimes choose an easier yet unethical path to success. The frictions and pressures of trial practice make the unnecessary personal attack on opposing counsel an attractive weapon in the arsenal of trial lawyers engaging in close verbal combat. For the most part, we have learned to step back, take a breath, take a walk. We’ve dictated lots of clever but cutting letters that were discarded after a night on the desk. We relentlessly strive to be more zealous, but less vitriolic.

“Keep cool, don’t freeze.” At the distance of 27 years from our meeting at UVA, we’ve finally come to recognize that much of what we’ve learned in driving over and around the bumps in the road in our pursuit of professional perfection was imparted to us by a wise man of the Law School, not long after we first sat in that back row at Caplin Auditorium. Hardy Cross Dillard told us that the best advice for most stressful situations was so simple it could be found on a mayonnaise bottle — “Keep cool, don’t freeze.”

Mr. Dillard, sir, thank you. It gets kind of hot here in Tampa most of the year, but we’re still trying to keep cool and, in our (mostly) relentless pursuit of professional perfection, we’re constantly trying to get better at it.

Consistency and Balance: A Judge’s Job

Chief Justice Myron T. Steele ’70, LL.M. ’04
Delaware Supreme Court

Myron Steele '70As the leader of the Delaware judiciary, each year I receive numerous invitations to speak to groups around the world about Delaware’s continued success in maintaining its top-ranked court system and its preeminence as the forum of choice for corporations and alternative business entities. As of April 2007, over 62% of all Fortune 500 companies were incorporated in Delaware and since 1973, 75 % of all U.S. initial public offering entities ultimately selected Delaware as their corporate home. Our courts’ business decisions receive intense scrutiny and we take pride in Delaware’s international reputation for being a center for the development of principles of corporate governance. Academics expend more than a little ink critiquing Delaware decisions and our highly respected bar is eagerly sought out to render help to boards of directors seeking to comply with that guidance.

That said, when I was invited to offer some insight into the challenges jurists face in resolving difficult disputes and ultimately reaching the right result, the tough and controversial cases that immediately sprang to mind were not corporate. My colleagues on the bench and I serve all of Delaware’s citizens, not just our corporate citizens. Many of our other carefully crafted judicial opinions more directly impact the daily lives of our neighbors in this small state. The Supreme Court’s ultimate purpose is to provide a venue for the fair, prompt, and legally correct disposition of each and every case brought before us on appeal. Delaware’s three major courts’ opinions are widely respected — a daunting standard to maintain no matter what area of the law is at issue.

In Delaware, we are fortunate to have appointed judges who do not have to focus on funding their next reelection or retention campaign. Nevertheless we are certainly mindful that the decisions we make can set far-reaching precedents and inevitably will disappoint or even anger legislators and citizens whose respect and support are vital to our work. Public opinion is never far away, especially in the small, highly personalized environment that is Delaware. But being aware of the community in which one lives in order to find pragmatic solutions to disputes must ultimately be balanced with the independence and objectivity each jurist must possess. If there is anything that would impugn the vital integrity of our court system, it would be the perception that external pressures could affect our decision-making process. Our task is to apply the law to the facts of the specific case before us and not to use cases to express personal views or to make policy consistent with those views.

Resolving cases in new areas of the law also tests judges’ ability to apply existing precedent carefully while remaining open to changed circumstances. In Doe v. Cahill, 884 A.2d 451 (Del. 2005), a local public official attempted to learn the name of the individual who had anonymously posted offensive comments about him on an internet blog in order to perfect process in a defamation action. The trial court had applied a good faith standard and ordered the ISP provider to reveal the blogger’s identity. The Delaware Supreme Court reversed, finding that a good faith standard did not adequately protect the blogger’s First Amendment right to speak anonymously. Citing the need to “appropriately balance one person’s right to speak anonymously against another person’s right to protect his reputation,” we held that a defamation plaintiff is required to establish a genuine issue of material fact for each essential element of the claim within the plaintiff’s control before being able to obtain the name of the anonymous defendant. We tried to express our understanding that blogs and chat rooms are intended to be places for people to express their opinions, that those offended can almost instantly reply and refute those views, and by so doing protect their reputation in a free wheeling environment designed for loose exchange of opinions. We thought that all should be very wary of any efforts that would have a chilling effect on free speech, especially in a forum where readers should logically be suspicious of the veracity of any anonymous comment. Our decision, ironically, stimulated an even more intense blogging effort where we became the vilified.

Regardless of legal context, all judges daily face the difficult task of understanding the competing interests of parties, providing a fair and impartial forum for advancing those interests and ultimately balancing those interests by disposing of disputes in a way that is just, comports with law and equity and preserves the integrity of the system. We can only hope we do it consistently well.