We Are All in This Together

On May 24th, David Markowitz was awarded the Multnomah Bar Association's Professionalism Award at the MBA's annual dinner. This prestigious honor is awarded to an individual for the highest ethical standards and exemplary conduct in the practice of law and for making the practice of law more enjoyable. Below is his acceptance speech. 

Thank you very much. First of all, I want to share the award tonight. At age 21, Candy Barnett became my legal secretary. She recently retired at age 65. With 44 years as my teammate, there's no way I could possibly accept this award without her joining in it. Thank you, Candy. We had a fabulous 44 years together.

So, I want to start off with remarks that I started at an event similar to this a few months ago. Ed Harnden was receiving a lifetime achievement award. Well-deserved. And I introduced him. I had time to start a story about my earliest days with Ed. And the story was that I joined a law firm almost 50 years ago where Ed was already a third-year associate. Quickly upon joining the firm, Ed came to me to give me unsolicited advice about the practice of law, participation in the law firm, and to basically give me a head start on how to be a young trial lawyer in Oregon.

And the most important thing we talked about was what he called the Oregon way of practice. And the simple explanation was that we are practicing with a relatively small group of people. And it's a long game where we're going to participate with that small group of people for a very long time. And that how we act today toward them will heavily influence how they will act toward us tomorrow.

What he explained was that a lot of this small group of people have come to understand that civility in practice, sort of the golden rule of practice, treating them as we would want them to treat us, really works well. And his particular selling point was that it reduces the impact - it's much easier to practice if we're practicing in this small group of people, who all feel that we are in this together and that we could help each other get through it.

So, I obviously adopted what he explained should be a method of practice and did it for many years. Then, about a decade later, we had another event that I now want to explain. By this decade later, now the mid to late 80s, instead of the 70s, Barrie Herbold and I had left and formed our own practice. Barrie had a lot of wise things that she wanted to do with this new firm that was her concept.

We had taken on the representation of a man who was dying because of medical malpractice. He’d been misdiagnosed in Oregon. He had left Oregon with his wife and two young children to move back to California where his family was, who would be able to support him in his last months. The case had been filed, it was moving swiftly, but the deposition of our client had not been taken. Barrie got a call on Thursday that our client had just been notified by his doctors that he only had a few days to live.

And so, we, actually Barrie, called the defense lawyer to say that we needed to take a deposition within the next few days probably over a weekend even though discovery had not been completed, even though there had been no prior notice. The defense lawyer was Ned Clark.

Ned at the time was one of the great lawyers in our state. The Clark, Marsh, Lindauer firm. He was generally recognized as among the best defense attorneys, particularly medical malpractice attorneys, and he and Barrie agreed the deposition was going to take place in California on Sunday. So, all of us went to California. I was there to assist. I was sitting in the living room of the client’s family, and I saw Ned arrive. I went out onto the street to greet him. I met him on the sidewalk, and I started to apologize for the disruption of his weekend.

I only got a few words out and then he stopped me and said “Dave you do not need to apologize. We are all in this together.” He grabbed my arm, turned us around, and said let's go to work. He conducted his share of that phase of the deposition with as much grace as anyone under the circumstances could possibly have done.

I was struck by his use of the same phrase “We're all in this together” that I’d heard from Ed a decade earlier, and that I was still to a large extent using it to guide my decision-making. But Ned’s seemed different.

There was no self-protection in it that was kind of the core of what Ed and I had talked about. Ned’s was more professional. It was about all of us in the profession. It was, as he took the deposition, it was grace. I spent significant time after that thinking about what I thought Ned was trying to show, and frankly, I unabashedly stole from him. I took what I thought he was doing and used it to model my own decision-making that I have used for decades. The simplest description of it is that every place where it is usable, I look for the least combative winning solution.

Now perhaps the most important part of that is the “winning solution.” We are in this to win. We’re not going to be successful for a long-term basis just by being nice and kind. Clients don't flock to us for that purpose. However, there are many times in our practice that we can find more than one winning solution, and my belief, taken from Ed and Ned, is that if there's an available, less combative solution that will still lead to winning, then that’s the route I’m going to take.

So, it’s been a simple guide from a couple of events, people who've worked with me over the years. Attorneys like Laura probably have become attuned to it.

And so, my closing comment for everyone here is if you are still in that part of your practice where you are deciding how you are going to make the important litigation decisions that you make, I think you should be guided by the simple principle “We're all in this together.”

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