In a recent article for Tort Trial & Insurance Practice Law Journal, Goldberg Segalla’s Peter J. Biging turns his attention to defending “claims involving gross negligence, palpably credible allegations of fraud, intentional misconduct, or otherwise overtly malicious and utterly indefensible behavior.” In a situation like this — tasked with “defending the indefensible” —an attorney faces a host of “moral, ethical, and strategic considerations.”
Matters involving “indefensible” claims can, however, be defended, as Peter explains. In his paper, Peter aims a keen eye at many of the challenges associated with these difficult defenses, from American Bar Association standards and the limits of witness preparation to technical defenses and the possibility of early settlement.
“When faced with the task of defending ‘indefensible’ conduct, it is important to understand that the role of a lawyer is to provide an honest, ethical, and fulsome defense of the client, to the best of his or her ability,” Peter writes. “If for moral, business, or other reasons you feel uncomfortable representing a client in these circumstances, it is your obligation to pass on the representation.” When an attorney does take on such a task, he cautions, he or she “must have a keen understanding not only of what evidence is admissible, but also of the relationship between the rules of evidence, the rules governing conﬂicts of interest, the attorney-client privilege, and the principles governing questionable evidence.”