Brungardt Law's Lagniappe
A little extra perspective from Brungardt Law conveyed through conversations with individuals of various backgrounds exploring the interplay of practices, policies, and laws with decision making and leadership. An opportunity to learn how to navigate towards productive outcomes as well as appreciate the journey through the experiences and observations of others.
Brungardt Law's Lagniappe
Integrity and Service Through Advocacy: A Conversation with Blaine LeCesne
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Today’s guest that we’ll be learning from is Professor Blaine LeCesne. Originally raised and educated in New Orleans, Professor LeCesne pursued his university and law school education in New York where he subsequently worked at a Wall Street law firm. However, Professor LeCesne's roots in the Big Easy were too strong to remain away and he returned home where he ultimately joined the faculty of Loyola University New Orleans College of Law where he has taught since 1991 and is also an Associate Dean transforming students into the advocates of tomorrow. Professor LeCesne has authored various works in the fields of Torts and Louisiana Civil Procedure.
Are all accidents truly accidents? Mishaps? Or are they the culmination of a series of negligent acts from ordinary negligence to willful misconduct? What about natural disasters? How much of the disaster is attributable to Mother Nature, the vice actions we have undertaken as a society? Are the resulting harms a consequence of a normalization of deviance? Welcome to Brungart Law's Langap, where we provide you a little extra perspective beyond the law through conversations with individuals from all walks of life. I'm Maurice Brungart, your host. I enjoy engaging with experienced, knowledgeable, and passionate individuals for the opportunity it affords to broaden and deepen understanding of the world through their perspectives. They offer insights into what makes for effective practices and policies, enabling productive decision-making in our own lives. The more we learn, the more likely we can avoid common pitfalls, become better versions of ourselves, and guide others towards the same. Today's guest that we'll be learning from is Professor Blaine Lesanne. Professor Lesanne transforms students and advocates at Loyola University, New Orleans College of Law, where he has taught since 1991, and he's also an associate dean. Professor Lesanne has authored various works in the fields of torts and Louisiana Civil Procedure. Welcome to the program, Professor.
SPEAKER_00:Thank you for having me.
SPEAKER_03:Well, again, like I say to all my guests, it's a privilege. I'm grateful for this opportunity to engage in a conversation with you, uh, and hopefully our listeners can uh derive some benefit from it. Uh why don't you tell us a little bit about yourself, where you're originally from, uh, you know, where you studied. Sure.
SPEAKER_00:Uh I was born uh in New Orleans, Louisiana, where I spent uh most of my uh young formative years. Uh attended Jesuit high school here in New Orleans.
SPEAKER_03:Um Jesuit? What I had no idea. I'm a Jesuit grad too.
SPEAKER_00:So what you as you know, Jesuits are very good at education. Uh-huh. And so uh uh Jesuit High School was the preeminent high school here. I think it's one of the best in the country. And um and so I was uh very fortunate to be able to attend uh Jesuit High School. So I was spent my early years here up to age 18. Um, and then it was time to leave New Orleans, my beloved New Orleans, which is hard to do. And so uh I knew I wanted to get educated um uh college and beyond uh in New York City. The reason for that is uh New York, to my mind, had the best of everything. So I I wanted exposure uh to the best of everything, whether it was the arts or the law or justice or food. I'm a big foodie, or just life in general. It so it sort of gave me uh a barometer against which uh to measure any later endeavors in life, whatever they may be. So it was New York City, I was just determined to get there. And so I was fortunate enough to uh get into Columbia College, where I went to undergrad, uh majored in political science, and then from there uh Columbia Law School. And so uh after Columbia Law School, I practiced at one of the larger uh New York uh Wall Street firms uh for a few years and then moved to another Wall Street uh type uh law firm, you know, huge law firms for the time. I mean 200, 300 plus lawyers. Uh by today's standards, that's a relatively small firm. Well, I should say medium firm, because firms today can uh you know get upwards of 500 to even a thousand lawyers. Uh but at the time these were the considered the the preeminent um uh uh you know blue chip uh firms. And so again, I decided to uh immerse myself in that world to uh learn from the best and uh again to set a standard for myself in terms of work product and lawyering skills uh because uh these law firms uh had some pretty you know excellent uh lawyers and I wanted that training. So uh from there I worked uh in New York at those firms for about six or seven years, but then the poll of New Orleans, uh, and you should know this well. I do having grown up in New Orleans, it's hard for me to leave. It draws you back. It once it's in your blood, it's hard to uh it's hard to dismiss it or forget it, and it just it just woos you back. And um so I uh I decided to come back to New Orleans and open up a small law firm uh with uh my uh best friend from high school uh who is um actually ended up being the former sheriff of New Orleans, Marlon Gussman. Uh at the time he was uh uh one of uh Dutch Moriel's uh key uh uh figures in his administration. And so we opened up a uh a law practice, small law practice. And uh from there I eventually um went to a medium-sized law firm in um in New Orleans. I was also in the interim a deputy city attorney for the city of New Orleans. Um at the time I was just trying to re-establish my career and establish myself uh as a practitioner in New Orleans. And so uh I did that for a few years.
SPEAKER_03:And uh Was it was it a diff, if you don't mind me interrupting, was it a difficult transition going from practicing with a Wall Street firm to then coming here to New Orleans? Or was it fairly straightforward?
SPEAKER_00:Well, a few things in life are uh as uh straightforward when you move from a place like New York City to New Orleans. It's it's a whole different universe. But in terms of the practice itself, there are certain fundamentals that uh apply whether you're you know in a rural area in Mississippi or if you're on Wall Street. Uh and that just comes down to uh attentiveness to service and a recognition and reminder of why you are there, who you are serving, what your client's needs are, the skills that are necessary to advocate for that client's uh uh uh position.
SPEAKER_03:Which of those skills do you think, or um practices or styles did you find you had to tweak because what worked in New York might not necessarily work here in New Orleans and vice versa, or or not.
SPEAKER_00:Well, uh as you probably know, your style uh as uh as a lawyer evolves.
SPEAKER_03:Yes.
SPEAKER_00:And and my my initial formative uh uh years uh it was uh premised on a very uh hard-hitting, aggressive, sort of take no prisoners uh approach, uh, because there were huge uh amounts of money at stake in representing largely Fortune 500 companies. So these were hundred million dollar cases. Um and so that uh usually required a very um uh how should I put it? Um hard-hitting aggressive style. Okay. Which doesn't necessarily mesh with my personality.
SPEAKER_03:Okay.
SPEAKER_00:But uh I, you know, adopted some of that, I must say. But it it transformed ultimately into just advocacy and remembering that I'm there to serve that client. So it doesn't matter if they were General Motors or Shell Oil Company, uh, the passion and the advocacy was as important uh when you're representing uh some individual who may have their life savings at stake in litigation, or custody of their child at stake in their litigation, or their very freedom if they're being criminally prosecuted. And frankly, once I started representing uh those kinds of uh folks and those normal situations, I found that far more um uh inspiring than whether uh a Fortune 100 company uh would uh would would would beat out uh another Fortune 100 company uh for$500 million that was in dispute. Um and I distinctly remember my first custody case with it representing a single mother uh and the trial of that case. Um that was more pressure, more um passion uh that I mustered in that effort, more at stake than the largest cases that I worked on in New York City. Getting custody of that child for that single mother to me was a life or death situation. And so the passion that and the hard-hitting adversarial style, uh, which doesn't mean, by the way, being a jerk. It doesn't mean uh diminishing others, it doesn't mean um uh letting your ego control the situation uh to lift yourself up. It means a passion for serving uh the interest of that client, however small it may be in the larger scheme of things. So the um the uh hard-hitting style actually served that purpose. But you should always do it with dignity and respect for the institution, respect for the opposition, respect for the judge, and respect for the process. So um those are the lessons that that I took from uh that experience in New York.
SPEAKER_03:Out of curiosity, when you transitioned from New York to New Orleans and you were practicing law here in New Orleans, um did you find that there was a difference in how lawyers treated one another from New York City to here? Or uh it was pretty much the same. You know, most of the the profession are professionals and they treat other respectfully, and there's always a few jerks out there. Uh or did you notice there was a a huge cultural uh change practicing law in New Orleans and practicing law there and how you interacted with opposing counsel?
SPEAKER_00:Well, um not a significant uh difference. Uh there may have been some sort of uh demographic um sort of nuances in the way that lawyers uh in the South uh interact with each other. It may be uh a little bit more uh genteel, it may be uh a little more down-earth. But you know, once the bell rings, um two tenacious opponents at each other. Yeah, it which is as it should be because you're you're trying to advocate uh for justice and to reach a just result with usually two competing narratives of what happened. And so that's how our system works, with that zealous advocacy, which we are duty bound professionally to actually uh deploy in our representation of others. So, you know, I found that once you once you start that adversarial process, um it it pretty much is the same. And there are good lawyers wherever you are. I don't care whether whether it's the country lawyer or the big city lawyer. Uh they're good lawyers uh can be found. And uh we certainly have some of the best I've ever seen in New Orleans, and some of the best actually graduating from this law school. And we can talk a little bit about why that is in a minute. Uh but uh the big learn big law firms in New Orleans were every bit as capable as the big boys in New York City. So not a lot of uh difference there.
SPEAKER_03:Um, what inspired the shift from the practice of law now to the teaching of law?
SPEAKER_00:Well, uh it was quite fortuitous. I was attending a federal bar association function, and uh I you know ran into the then dean of uh Loyola Law School, Lewis Westerfield, um, and we just struck up a conversation and he asked me, uh, have you ever thought about teaching law? And uh I said, no, I really haven't. Uh tell me about it. And so he started describing the job. And uh at the end of that conversation, I said, wait a minute, you're telling me you are going to pay me to teach, to think, and to write, and you call that a job? And you're gonna compensate me for it? Where do I sign up? So that uh caused me to embark on uh how do you get into legal academia, which is a quite a competitive uh area. It's very, very difficult because these jobs are so coveted.
SPEAKER_01:Yes.
SPEAKER_00:Um and uh, you know, there's some really incredibly talented people applying for them. So uh I came to Loyola and did the job talk, and I was fortunate enough to get an offer, and the rest is history. That was back in 1991. I can't believe I'm so fortunate to have landed in a situation like this. Uh I consider it better than winning uh the Powerball, even the most recent Powerball. Uh so yeah, um it's a it's just a wonderful opportunity to help uh influence and shape uh the lives of young people and to contribute to the betterment uh of the profession.
SPEAKER_03:For for the listeners there, uh if you're not picking it picking up on it in uh Professor Lesanne's inflection, I can tell you he's speaking very passionately. Uh I see the smiles coming out when he's speaking of uh the shift to teaching uh and the intensity in his eyes. Uh and I can really see he he digs his stuff.
SPEAKER_00:Well, passion is important in whatever you do.
SPEAKER_03:Yes.
SPEAKER_00:Whether it's cleaning your toilet or arguing before the Supreme Court. You do both of those tasks as if the world were watching.
SPEAKER_03:Well, in teaching, um do you find there are any differences from your experience being at one of the Ivy League schools uh to teaching here in a small Jesuit institution?
SPEAKER_00:Yeah, absolutely. There are uh major differences in that regard, uh, especially at a Jesuit institution uh founded upon uh Ignatian principles, which center around service to the uh underprivileged and a commitment to social justice. That's one thing. The other thing is this Ignatian ideal uh which is um referred to as cura personalis. It's a Latin term that means a holistic respect for and cultivation of the individual parts of every person, recognizing and respecting with dignity what each of us are made of, which are very unique component parts. And that involves our li our lived experiences, our identity, our racial identity, our uh social um um ethical identity, our uh uh ideological perspectives, our religious orientation, just respecting uh all parts of the individual. Those things are incredibly important in shaping a community. So at Columbia, one of the best law schools in the country, but there was little sense of community. Um everyone was kind of like doing their own thing. Most of these people were destined to uh end up in uh the uh the the pinnacles of power, whether it's governmental or private sector. Um and so they were enormously talented individuals, but there wasn't really a sense of community that you find at a small Jesuit school or any smaller school that has a mission, an identifiable mission. And if that mission centers around service to others, that permeates the whole campus and it attracts a certain kind of person, a person who is aligned with those commitments. And that helps shape a community, one where everyone feels interconnected, where they feel that they belong, where they feel that they are uh striving towards a common objective. Um and if that objective is aligned with supporting and uplifting others, that makes for a special place. Now, not everyone that comes to Loyola has that mission in mind, but inevitably it uh it affects uh everything that we do here because um it just permeates the place. And it it makes for a very comfortable uh environment where you are poised to thrive and to learn and to do your best because of community. Community is very important in a recognition of our interconnectedness as beings, it's very important, and so you know not allowing ourselves to drift off from that interconnectedness and just kind of do our own things regardless of how it affects others really uh really shapes the experience. So there is that. And in terms of um just the quality of students, we in New Orleans at Loyola and smaller schools throughout the country have incredibly talented students. Now, the students that you might find at some of the uh top-ranked and Ivy League schools, those are students that have excelled uh in in college and standardized tests. So they're these scores uh that they come into these entrance credentials are off the charts, right? We don't have as much of that at Loyola, though we have, you know, those who have objectively performed well. But that's just the starting point of one's capacity and capability and ability to serve and grow and make meaningful contributions. And what I mean by that is uh raw intellect is just a two, it's just one aspect of an individual. But there are many other parts of an individual that could contribute to their overall efficacy in serving others. And law is a service profession. So uh I would say that uh the students at Loyola can compete with or even exceed the performance of students at some of these higher-end schools. Um because um the the strength of uh of individuality and what motivates a person and the intangibles like uh passion and commitment and service and kindness and compassion and humility and all of those traits that really elevate our humanity um are not found in um LSAT scores.
SPEAKER_03:No, they're not.
SPEAKER_00:Or GPAs.
SPEAKER_03:How do you, or how have you as a professor integrated uh some of these aspects of Loyola's mission when you're teaching? How do you uh because I assume you'll go teach your class on torts or a civil procedure, right? Uh and you could go the whole hour or well, however the length of time is, uh, and you're just focused on the law. But I assume you try to purposefully find moments where you can integrate uh the university's mission into what you're teaching. How do you go about accomplishing that? Well, it's so you're planting these seeds in students' heads, our future litigators and advocates.
SPEAKER_00:Well, that that's a very uh good question, and it's never just about the law. Um I uh there is a saying, and I forget who the uh person is that said it, I think it was uh a saint, actually, um, that um justice without a spiritual foundation is incomplete. So I constantly remind my students that first of all, you are learning a service profession. You are here to serve your clients. And so it's not just about doctrine or theory. Uh you are learning skills to effectuate a result that is going to be life-changing for your client. And so always remember that it is not about you, so drop the ego, uh, although how you conduct yourself in practicing law says a lot about you as an individual, but uh remembering that it is um result-oriented in service to your client. And uh when you remember that and constantly remind yourself of it, uh then you're in the best position to do what you were meant to do. So let's talk about how do we get the result for your client given this particular principle of law or this particular case with which we're being confronted. Also look at the human components of the case and the litigants and their lies, and how does the principle of law that is being discussed um respect the individual dignity of the persons and creates policies that uh uh result in a uh a better community and a better society.
SPEAKER_03:One one reason I asked this is, you know, as you're aware, uh, for over a couple of decades, uh I served in the U.S. Department of State's Bureau of Diplomatic Security. And uh years ago we established what we called leadership tenants, and they were ascribed and they were enshrined in our uh regulations. Uh and the idea was to keep those in mind uh when we were doing the variety of our tasks, whether we were conducting protective operations or security management uh or criminal investigations, uh but you know, we were constantly reminded whether we were the subordinate or the supervisor or peers, uh, and then we would also consider this when conducting evaluations. Um and so this is why I asked the question uh how if if the university also works with the professors to remind them, you know, when you're teaching, just like you've been talking about, and from what I'm hearing, and having been in one of your classes years ago, uh I picked up on that integration of the mission. Uh but you know, is the school ensuring all the professors are remembering, hey, we need to make sure we're tying our mission into our teachings. Uh, because it can one can get into a routine and I just go teach my law class, right?
SPEAKER_00:Yeah, that that's the beauty, again, of a of a school like Loyola uh with a Jesuit uh Ignatian uh uh foundation. We don't have to really remind ourselves, though we do it periodically, but the sense of community that is already created by that common mission just infiltrates everything we do. So uh we're we're proceeding from uh an ethos that is already sort of built into what we're doing. And uh so we just constantly remind ourselves not that we should be doing it, but how we can do it better.
SPEAKER_03:Yeah.
SPEAKER_00:So we don't have to, you know, it's not a two-step process for us. It's like we're here to do X, Y, and Z. And uh how can we make that happen in a more effective way? And we do that constantly. We well, there's a there's a lot of collaboration uh between professors. We we talk about how we can make our classes come to life um more for our students. Techniques, we share materials, we share ideas. There's a lot of cross-polonization of thought into how to effectively teach in alignment with that mission, which again is social justice oriented. And um that has many forms. It doesn't just mean service to the underprivileged, although that's a huge component of it, but we see it come to life in our law clinic. Loyola had uh a law clinic uh before law clinics were even fashionable. Now every law school has them, but we were doing it before it was a thing, right? Back in in the 60s. And it was a very, and still is a very important part of our mission, where we have students that are learning on the ground, serving real clients in real cases under real circumstances, uh, and most of these clients could not otherwise afford legal representation. So we also do it in our skills courses. We're very experientially oriented law school where you bring, you bridge theory with uh with practice and how to get it done. So we don't just mire ourselves in in doctrine, legal doctrine and and theory. Uh we take the next step and uh and train our students as to how to do it. And we do that through our clinic, through our skills programs, through our robust MOOC court and trial advocacy uh program. And um we just believe in learning by doing.
SPEAKER_03:From what you've been able to, before I forget, because this question came to uh my mind uh while I've been listening to you, and it's here within New Orleans, uh so without having to comment on Louisiana or across the U.S., here in New Orleans, from what you've been able to observe from the time you were practicing law here to now the last 34 years of teaching, do you find that the profession has maintained standards uh or has there been a loss of professionalism uh over time, or has it actually improved? Uh are we doing things better as legal practitioners in in the court system here in New Orleans?
SPEAKER_00:Well, I don't know that it's unique to New Orleans, but uh unfortunately I I I sense more of a diminishment in uh professionalism and uh attentiveness to uh professional standards. Uh maybe that's a result of the over-commercialization of law, you know, with the prolific advertisement that we see, with the increasing competitiveness uh for clients, um with the degradation of uh legal systems and not uh honoring the rule of law, which in turn is probably a product of more uh politically based uh judicial appointments. Uh and that's why I mean that's why I emphasize how it's important to honor the integrity of the process and the system. And however politicized we get in our engagement uh in our other aspects of life, and we're overly politicized and we're incredibly divided, and that's not a good thing, some of that has seeped into the legal system. So I think there's more of a tendency to cut corners, there's more of a tendency to push the envelope in terms of credible legal theories. Uh, there's more of a temptation by judges who have a politically oriented center to achieve a result that's inconsistent with the rule of law. Um, all of these things degrade the process, degrade the system, and degrade our humanity. So it's important as officers of the court to honor the process and the systems. And to do so with integrity. What's the solution for that? Well, one potential solution I think is more robust imposition of sanctions against attorneys who abuse the process. And that's one thing that I think is underutilized that might serve to nudge us back in the direction where, you know, it is more of an honorable profession than it is today. I still think that lawyers serve a an extremely important function in our society. And it pains me to see the process and the and our institutions degraded to that extent where politics starts to invade the process of obtaining justice.
SPEAKER_03:Speaking of politics, um well, here in Louisiana, and it happens in other states as well, uh, but a difference between the way judges become judges here and in the federal system. Judges here are elected, and in the federal system, they're you know nominated and confirmed and appointed. What's your your take on it? You know, is is one necessarily better than the other, or it's good that we have two different systems where you got to be elected into it and voters could throw you out later, or should you know we consider having uh judges you know serving for life at the state level?
SPEAKER_00:That that is a uh an age o question that has played political profession from the dawn of its inception. Um there are many ways to skin a cat. There are downsides to each system. Yes. Uh you know, with the electoral process, you are you're subject to the whims of the electorate, which can be easily uh manipulated. Um and depending upon you know who has the most resources uh in that electoral process, uh can result in um someone who maybe is not uh best suited to be a judge. Uh on the appointment side, just have the same potential corruptive of effect by those who are appointing judges. And that's why I don't care what side of the aisle you're on, you know, if you are a part of the administration of justice and a part of our legal system, um, as a lawyer or a judge or as an uh uh one who appoints uh judges, you need to honor the process. Now, it inevitably some sort of political ideology will seep into the process to some extent. Uh, and that's unavoidable because we're all human and you know we'd like to, uh, if we're in a position to appoint a judge, appoint a judge that is aligned with our our values. Yes. But our values have become so corrupted and has strayed so far away from uh why we're all here on this earth in this temporary situation called life. You know, I believe it is to uplift each other, not tear them down, not not to engage in and um deliberate cruelty, uh, not to subjugate those who are vulnerable, not to try to uh acquire for ourselves uh wealth and power to the exclusion of others, not to honor and respect basic human values and the humanity of of each other. Um you start straying away from that and trying to sort of uh uh load the dice, uh you uh you dishonor the system and you weaken the system, and you can weaken it to the point where it no longer serves its its fundamental uh purpose of achieving justice. And none of us win in that situation. So whether it's appointed or elected, you've got we've got to come back to um honor and integrity and compassion and kindness and love. I know it sounds trite, but we we actually uh do better for ourselves and for others when we manifest a loving heart in all of our actions, regardless of those with whom we disagree. You know, it should never get to the point where we're uh willing to tear each other apart or where where we normalize the deviancy of dividing each other based on ideological or or or political or uh other human traits uh which we all have that most of us are not responsible for or you know were brought into this world with. I mean, the color of your skin or how you were raised uh religiously or what you believe in, all of these are products of our exposure and our experiences. So how can you fault another person for having those perspectives? How can you diminish and dehumanize them for being what they are, even if you disagree with them, even if you think they're the most violent individual in the world, you still should respect their right to be. And if we just respected each other's right to be, we can make a lot of lot more progress in uh being in a world where uh we can all thrive.
SPEAKER_03:This is true, and you reminded me um of there's a book that I enjoyed when I was in high school called The Once and Future King, and it's the evolution of Wart into King Arthur. And he goes from an environment of where might is right, and he's trying to switch the message to right is might. Uh and so as you were talking, uh, I was thinking of that. And speaking of the system of justice and kind of focusing on where you've been uh specializing, for lack of a better expression, over the past few years, the area of tort law. You know, for our listeners, tort law, tort comes from you know Latin and it involves an injury of some kind. Uh and we generally think of personal injury as sort of your ambulance chasing attorney. Uh been there, done that. Uh, but it's more than just that. I mean, people have suffered a harm. Uh, they could have been part of just a traffic accident, obviously, or they could have been working on a job site, uh, or it could be something much even larger than that. So walk us through one of your experiences or uh lessons that you've uh focused on involving tort law and where we go from, you know, instances, and as I alluded to at the beginning, you know, are these truly accidents or no, well, it's, you know, ordinary negligence, or are we dealing with wrongful misconduct uh and what that means? Yeah.
SPEAKER_00:Uh that is a huge question, which we could talk about literally for hours. Um, but uh let's just see if I can just cut to sort of the general parameters. Uh torts, as you uh identified, really deals with injuries to persons in property. And it's so much more than just the proverbial ambulance chaser. Yes. It's any uh injury.
SPEAKER_03:Defamation is a type of tort.
SPEAKER_00:Yeah, it's a um a reputational tort. You your reputation can be harmed just as much as your limbs could be harmed uh in a physical accident. So all of these are compensable, uh potentially compensable events under our tort system. Uh and the tort system is a way of, first of all, regulating our conduct, um so that we know what to expect of one another in our everyday interactions, even if we've never encountered that individual before. The rule of law through tort jurisprudence, court helps us to coordinate our activities so that we are less likely to harm each other, uh, whether it's through inadvertence or more conscious uh conduct uh directed towards someone else that results in their harm. In any event, tort law creates the policy, the regulatory policy to help guide our actions and our behavior, and it also provides a uh a compensatory mechanism uh to properly allocate who should absorb those losses. When you're physically injured, someone has to pay for it, right? Someone should should it be the victim or should it be the uh uh putative tort feaser? That's what the tort system of law designs to uh is designed to to determine. Who should uh properly bear that risk of loss? Um and so it's incredibly important uh to society uh because uh again, without those regulatory uh principles, uh you know, we uh we would we would really not know how to order our affairs. Um you know it is concurrent with statutory regulations, for example, the you know traffic code. Right. You know you have to adhere to certain uh uh driving you know requirements. Um and if you violate them, you're uh statutorily sanctioned. So that is one regulatory scheme that affects how we dri how we conduct ourselves on a highway. Imagine if there were no traffic laws and everybody could just do their own thing. You'd have mayhem, you'd have chaos, and you'd have, you know, unfair uh absorption of losses caused by um uh the wrongful conduct of someone else.
SPEAKER_03:Deregulation to the extreme.
SPEAKER_00:So we have statutory traffic laws, but we also have jurisprudence, tort jurisprudence, that also specifically uh, you know, uh uh direct what the expectations of reasonableness, of reasonable conduct should be when we're engaged in driving. That's just one smaller example, but it cuts across all aspects of life. And without that regulatory fabric, and again, it's both the statutory as well as the uh jurisprudential, um we're we're better able to at least minim, I shouldn't say minimize because this there's still mayhem and you know destruction that's going on. It'd be that much worse without this regulatory overlay. Uh, but what these regulations do, both statutory and jurisprudential, is provide uh a disincentive to act unreasonably and cause harm to others. So that's the overview of what tort law is and what it's designed to uh to accomplish.
SPEAKER_03:And you know, for our listeners out there, you know, the the value of attorneys that are practicing tort law, uh the personal injury attorneys, uh, and then the ones on the other side, you know, the the defense attorneys, uh, you know, share your insights about that, the the value that each brings to the table. And you've alluded to that, uh, talking about uh identifying, you know, actually who bears uh the compensation for the harm.
SPEAKER_00:Um well in most tort situations, there are um, in every tort situation, you're going to have someone who is victimized by the behavior of someone else. In other words, they've suffered some sort of loss as a result of another person's actions, whether they were wrongful or not, they've suffered this loss. And then on the other side, uh there is a competing narrative of who was really responsible for that loss to begin with. Maybe it was the plaintiff, maybe the victim. Yes. Uh it wasn't me. I behaved in a reasonable manner.
SPEAKER_03:Yes.
SPEAKER_00:Uh and so we have a uh, or it might be some third person or some non-party to the case, or some co-party to the case, uh, another defendant who it wasn't me, it was that person who was responsible for whatever happened to the plaintiff. But we need a process to sort through all of that, and that's our adversarial litigation process. Uh so it's easy to malign a uh you know tort lawyer thinking in a limited view of them being an ambulance chaser or whatever, until you need one, until you've suffered some sort of loss that should not have happened because of the behavior of someone else. So we have an adversarial process where we can uh we we could sort through that, and whether it's a judge or a jury, they will determine whether the expected standable standards of reasonable behavior in that situation was um was uh at uh adhered to, in which case the defendant will be absolved of any liability, or whether it was breached, in which case the defendant and maybe even the plaintiff, if they contributed to their own harm, uh would be responsible for those losses. But that's the process. Otherwise, how we decided. In England, before the founding of this country, it was decided by somebody with a uh a crown on their head, you know, and that was not always the uh the best result, even if you could get before um that figure hit. So we've developed a system of justice in this country, um, and it's an adversarial process, where the truth of what actually happened is determined by uh hopefully an objective uh tribunal.
SPEAKER_03:And what about when the harm is committed by an individual or an entity that has the protection, you know, the blanket of immunity? So whether you know it's a municipal, state, or even the federal government, you know, how does one hold those individuals or those institutions liable because they have things known as qualified immunity. Uh and I find, you know, a lot of times, at least from my observations, that it's very difficult to do. Uh even when one can demonstrate there is a harm committed.
SPEAKER_00:Um, that's another uh that's a very good question. Um and it also helps shed some light on uh the um the notion that not everything that befalls you of an injurious nature is compensable. Um there are immunity grants um that run across the spectrum of our institutions. One, as you've mentioned, is qualified immunity for municipal, um, uh state and and federal governments. That's a trade-off. It's a trade-off because those institutions also perform invaluable services uh to society. So they are um endowed with a certain uh sh amount of protection from and shield against uh being held accountable for every misfortune that might happen to someone who encounters those institutions. Because otherwise those institutions would not be able to function as a matter of resources or being overwhelmed with lawsuits.
SPEAKER_03:But do but do you do you think so? Now that you have again uh several decades of experience and having studied this, uh so again, uh some people argue, and I having worked as an attorney, having worked as you know, a federal agent, uh arresting people, conducting operations, whatnot. Um so some people make the argument, you know, say the whether it's a state level or federal prosecutor, well, if they don't have immunity, well, they won't be able to do their job. But then again, well, is that really true? Because one could say, well, look at doctors. I mean, they take people's lives into their hands, literally, uh, you know, day in, day out, yet it hasn't impeded their ability to deliver a service. Uh, yet they can be held accountable should they not meet the standard of their profession. So, now is it time for perhaps we examine the question of immunity for government officials?
SPEAKER_00:Uh the simple answer to that is absolutely yes, because uh as with all um any uh sort of uh doctrine or um institutional protection, uh there can be abuses. Uh it's a delicate balance. And I I think you're right in identifying that the uh shield of immunity has often become a pretext for uh uh abusing the rights of others. And uh and yes, but again, that comes back to honoring the system and and enforcing the laws because if it's outside the bounds of uh immunity, it should not follow, you know, uh they that protective shield should not be should not be there. But even doctors uh, you know, have uh certain uh amount of uh immunity, um depending upon the exigency of the situation with which they're confronted, but yet they are still handed to uh held to a standard of care. Not so much on the governmental end, um there it's a much broader grant of immunity, and um and bad actors take advantage of it. And uh so I think absolutely uh you're right. Uh but I do think there is a place for limited immunity that is enforced uh with integrity and honor and and not abused.
SPEAKER_03:Because I never felt in the exercise of my profession uh as a law enforcement security professional that I couldn't do my job if I didn't have immunity. Because my focus was always on uh, as I like to communicate to those I worked with and that I uh would lead, you know, it's unquestioned integrity. You know, you know, do we have sufficient evidence uh that would lead us to believe this individual has committed a crime? Uh well, let's put that together. You know, is there any exculpatory evidence that we need to also consider uh and then pursue the individual uh subsequent to obtaining an arrest warrant, getting that, executing it, but never, and I don't know if this is an outcome of my education, uh, you know, my upbringing, uh whatnot. But again, I was I never had it in the back of my mind. Well, I can do what I want or make mistakes because I have immunity. Uh, and I would think, and I hope no one uh in the government profession thinks that way. Uh, because that just leads itself to abuse and not necessarily intentional abuse, just abuse through negligence, right? Uh and so that that's why I wanted to bring it up, because there are many instances uh where you have government actors uh and they end up harming individuals just through sheer negligence. And I don't know, I mean, over time I've thought, well, they they should be held accountable in some fashion or other, uh, because sometimes it really doesn't happen on the inside. Um, and whereas I think if there's that specter, that cloud of oh, I can be held financially responsible to that victim if I didn't adhere to a standard of care, uh, that changes the equation. Uh but I find uh the bar can be so high when you know you have a government defendant uh for the plaintiff.
SPEAKER_00:Yeah, well, your view towards uh doing your job uh in the right way is a product of how your parents raised you, right? Not everyone has parents as uh as diligent as yours. Uh and and so others take cover for their um unreasonable conduct under the um the pall of uh uh of immunity. But um you know the it it's it's it's hard to to determine when that line is crossed, uh but the abuses uh uh unquestionably occur. And you're right, it should not uh if you're doing your job right, um you should not um have to worry about whether or not you exceeded the bounds of reasonableness in uh in your actions. And so you should not have that cover uh when you do exceed those uh those parameters. Um but on the other hand, like anything else, it's a delicate balance. It all comes back to the to the person who's implementing it an honor for the system. There's a certain immunity granted to law enforcement in uh under our our constitution uh and our constitutional rights in terms of search and seizure and the requirement for reasonable suspicion uh and probable cause. But when you have corrupt judiciary that is misinterpreting what reasonable suspicion is, then it just opens the door for uh corruption. The most recent example is uh the US Supreme Court saying that you can stop a person based upon what they look like in immigration enforcement. That is an abomination and a just a complete defilement of uh the constitutional requirement of reasonable suspicion. So again, it all comes back to who is doing the interpretation, who is doing the implementation, who is enforcing uh the laws. But if you take a qualified immunity as a principle in and of itself, uh it does serve a purpose. But the fact that it is abused and exploited and used as a pretext for wrongful conduct does not mean it doesn't have a place at all.
SPEAKER_03:I I've been playing catch-up with uh a lot of the decisions coming out of the Supreme Court, and I'm aware of some of the latest ones. Um the one thing that just kind of resonates with me is I had found it interesting that you know earlier in the year, when the Supreme Court was basically stating universities cannot use race as a factor in their admission policies. Uh, and again, whether one agrees with it or not, to me I found the the thing didn't follow, the non-sequitour of this was well, they can't use race in their admission policies, but then now we're saying race can be used in law enforcement operations. So I just found that uh a bit of a contradiction. But granted, that's a discussion for exploring those particular cases and looking for uh, you know, the nuances. You know, what are there differences in how they're approaching race? Or are they literally contradicting themselves and they haven't realized it?
SPEAKER_00:That's an excellent observation. I hadn't thought about that particular contradictions because the contradictions are so uh prevalent in everything this Supreme Court is doing, because again, they're looking at what outcome, usually a politically, ideologically based outcome, they want to achieve, and they just sort of back themselves into it and discard decades of jurisprudence from their predecessors in order to achieve that result.
SPEAKER_03:I'm kind of curious if even the attorneys that were uh you know arguing for not the use of race uh and by law enforcement, and that was recently decided upon, if that was even brought up. I wonder if the lawyers even uh mentioned that to the Supreme Court. Well, if you say race can't be used over here, then you definitely shouldn't be using it over here because now it involves a denial of freedom, right? But again, that that's a very deep discussion.
SPEAKER_00:I love that topic. That's one that maybe we can uh circle back to.
SPEAKER_03:Um how do you find that tort law education and practice have evolved? And do you see areas for improvement in tort legislation?
SPEAKER_00:Oh, yeah, uh I think um well let me start with just uh the the principle uh the principles of tort law. Um they are pretty solidly enshrined um in our tort jurisprudence. Uh I'm actually using the same case book today to teach torts that I had in law school. Uh God, it was so long ago. I hope it's been updated. Oh, it's been it's been updated, but the we're reading some of the same cases that I read in law school, like Paul's graph. There are certain immutable principles that uh stand the test of time. So, but those principles evolve as they should because the law is an organic uh process uh and it changes to uh meet uh the changes that we see in society. We become a far more complex society, much more uh populous uh society around the world, societies around the world much more highly populated. The more people you put into a given place, the more prospect for uh boo-boos that can happen, right? And and and so um uh that um hasn't uh really changed much. But how we get to effectuating justice, resolving these disputes between those who are harmed by the conduct of another and those who are being accused and called to repair the uh the harm that they have caused. Um of the major uh I think advances over the last couple of decades, certainly uh I would put uh the advent of comparative fault is one of the major things. Uh and by comparative fault, for those listeners who are unfamiliar with that, um, in a tort case, um most states have adopted some form of comparative fault, so that the fault of all those who are responsible for the plaintiff's injury, including the plaintiff themselves, because sometimes the plaintiff is contributorily negligent in causing their own harm. Uh with comparative fault, the allocation of loss is distributed amongst all of those who may have had some role, however large or however small, in causing plaintiffs' uh injuries. So it's sort of a you broke it, you fix it approach, right? Before comparative fault, we had the uh situation where if the plaintiff was even a tiny bit at fault compared to the defendant, they could not recover anything at all. And that left led to some unjust uh uh inequitable results. The plaintiff could have been maybe only 2% responsible for their harm. And the let's say the the negligent, drunken driver going 100 miles an hour on a uh a city street would, and 98% at fault would be absolved of complete liability, and the plaintiff uh left to uh pay for their own uh losses. So that's uh obviously inequitable as result. So the advent of comparative fault where everybody who contributed to the harm pays for their um proportionate role in causing that harm. That was a big one. I also think the pr evolution of products liability law uh has been a major advancement and uh allowed uh causes of action very creatively uh brought up uh by the plaintiff's bar, uh, the cigarette uh manufacturers, for example. That was through the creative use uh and at the time novel use of products liability law to actually hold cigarette manufacturers responsible for the decades of uh loss of life that they were caused by uh the deceptive um uh uh purveying of their products.
SPEAKER_03:I I remember just uh an anecdote for the uh audience uh when one of the The litigators came to Loyal Law School. For the listeners out there, I'm a graduate of this law school. And he talked about how one avenue they found for going after the tobacco manufacturers was the way they would advertise. And because they weren't being, let's say, providing full disclosure about the harms, though everyone could say, well, we know cigarette smoking is bad for you. I don't think people really appreciated the degree to which it was actually supported. You know, manufacturers knew that they were not only delivering tobacco uh to smoke, but they were designing their cigarettes uh as, you know, it was on a microscopic level. It was a delivery mechanism. They knew how much to put of what in there to ensure they had a customer uh to deliver uh the effects of the nicotine. Uh but then he alluded to a company and he actually brought the the cigarettes with him, and it was out of the UK. He said, we can never sue these individuals. And then you know the brand, I think it was a black box with gold trim, uh, and the label for the cigarettes was death. Uh and on the side it said, you know, this will kill you, this will give you uh, you know, uh terrible health uh effects. And that's it. They gave full disclosure. Uh so just as uh a little humorous, you know, uh antidote, uh, but it provides perspective uh in terms of, you know, okay, what we assume that everybody knows, and well, you know, lawyers are just trying to make money off of this. And I'm sure there was an element of that. Um, but when you start to, like I say, you start to dig and you find out, oh no, this isn't like just a regular cigar that they just wrapped, you know, tobacco leaves in. No, it was designed to create addiction.
SPEAKER_00:Aaron Powell, who else is going to keep them honest if it's not lawyers?
SPEAKER_03:Well, that sounds a bit of a contradiction as well.
SPEAKER_00:Only if you buy the lawyer jokes. But uh but the same thing could be said of the asbestos industry or uh the automobile industry and their designs of uh seatbelt restraint systems and uh uh uh inappropriately uh placing uh gas tanks in a position on the car where they are more likely uh to uh combust in a in a collision, uh breastplant uh uh litigation, all of these things that are profit-driven enterprises where the enterpriser is seeking to maximize profit, and they do that through sales. So uh how can they get more product out there? How can they put those products out there at a uh a less expensive productive cost, which you know iners to their bottom line? So these are profit-driven driven ventures that are putting out mass products to which we are all exposed and in a large part dependent upon. How do we protect ourselves were it not for the lawyers, keeping them honest? So when we castigate um an entire industry or an entire profession that is actually there to serve as a watchdog of sorts, and yes, they are comp um compensated for those efforts, just as a doctor is in serving uh healthcare needs. Uh but these are critical functions uh that without which we would uh there would be a lot more inequitable distribution of those losses and a lot more prevalent uh conduct that creates more losses because they have gone unchecked, unregulated, and uh without consequence.
SPEAKER_03:And I know from my personal experience, and I'm from what I'm aware of, it's still uh happening today. Uh one benefit of a tort lawyer uh is the fact because they generally operate on a contingency fee basis, this is one area of the law that even the indigent have access to because they need not worry about having to pay the attorney.
SPEAKER_00:They do, they do pay though. They pay on the back end.
SPEAKER_03:They pay on the back end, but in terms of an upfront cost. Whereas, like if you need a criminal defense attorney, uh it's either provided by the state or you have to pay out uh of pocket. But generally in tort law, uh there is recourse for those that are without the financial means. Is that still the the way it is today?
SPEAKER_00:Oh, absolutely, and that's the way it should be, because without that recourse, they would have no access to justice. The working man can't pay$500 an hour for a lawyer to take their case, even though they may have suffered a uh a life-transforming injury. So that would mean they were effectively denied access to justice. And so one way to bridge that uh availability is through the contingency fee. Now the lawyer who takes that on takes it on at tremendous financial risk to their own livelihood. When you think about the the huge number of hours and upfront costs that they have to pay for in order to serve that client, even in a relatively small accident case. Uh but um and so they are compensated at the end if they get the result that uh you know uh ends up uh compensating uh their client. And so they get a portion of that. But without that, that client, the working Joe, um, and certainly those with uh who are in more necessitous circumstances would not be able to uh have access to tribunals to uh award them uh reparative or or compensatory um you know uh results.
SPEAKER_03:And speaking of the average Joe, and as we're coming here to the conclusion of this episode, now parting thoughts that you'd like to share for you know any of our listeners who are law students uh and will soon be litigators out there, or even for the practicing attorneys, uh whether they have been just practicing for the last year or decades, you know. What's something that you would like to leave uh with them?
SPEAKER_00:Yeah, um a couple of things. First of all, uh stay authentic. Stay uh true to yourself. Don't try to uh be something that you're not. Um so that's just in the way you carry yourself, because authenticity is important. Now hopefully that authenticity will also uh be grounded in the need to or let me strike that uh in the recognition that you are here to serve others, as I've been saying, to serve your client. Not for your own enrichment, not for your own ego, uh, not for your um not to enshrine yourself with um accolades or egoistic uh uh uh um inspiration.
SPEAKER_03:It's not about you, it's about the client.
SPEAKER_00:It's about the client. So remember the service-oriented nature of the profession and remember that that client has entrusted you with the single thing that is the most important thing in their lives at the time. And then you take that sacred obligation with you and you advocate for them with passion. Drop the ego. You know, whatever you do as a lawyer, do it with humility, with kindness, uh, with compassion, um and let those principles guide your actions. It's not about you. It's about something much bigger than you. And um those are those are just the foundational principles that I think apply to almost everything you do in life, but with particular urgency when it comes to representing your clients as a lawyer, and to effectuate that precious objective of achieving achieving justice. And so honor that, remember it, and uh and don't stray from it.
SPEAKER_03:Uh I always always like to ask my guest uh particular book that has resonated with them uh over time or what they're currently reading? Because I find uh if you want to get to know a person really well, you know, you walk in their shoes or you eat what they're eating or you read what they're reading, right? And it also provides new ways of seeing and experiencing the world. So any particular book you'd like to share with uh the audience?
SPEAKER_00:Well, there's so much I can talk about with that because I I tend to be a hoarder of books. So I will I will buy a bunch of different books at the same time, and I will just I will graze through them as opposed to sitting out uh with one book, reading it from beginning to end. But all of the things that I read or all the information I absorb absorb centers around health and wellness and spirituality. So if you look at my bookshelf, it's all there's no fiction there. It's all going to be it's going to be Michael Greger on you know how to avoid chronic disease.
SPEAKER_01:Okay.
SPEAKER_00:He has a couple of books, one of which is How Not to Die. It should be an encyclopedia, a Bible, a nutritional Bible in everyone's life. The epidemic of chronic disease is totally avoidable, and he just walks you through the nutritional plan to avoid the things that we are dying of in record numbers today, whether it's diabetes or cancer or uh you know hypertension, all of those things could actually be avoided.
SPEAKER_03:So is this the kind of book someone like me could actually integrate? Because I'm a hedonist when it comes to food and drink.
SPEAKER_00:Uh well, I'm a foodie, which is why I turned you. Maybe uh I should get some nutritional input. So I'm I'm now a vegan, having read uh Dr. uh uh uh Michael Greger's book. I just think it's important for every family to be aware of the most important medicine that you can take is what's on the end of your fork. Yes. And that will put years onto your life.
SPEAKER_03:So I have a bunch of books like not just years, but quality of life.
SPEAKER_00:Quality of life. Um, and the uh the blue zones uh book. Uh and um that's I find very interesting. The blue zones is a book about seven areas, I think six or seven areas around the world that share common traits and how they live, how they eat, and how they uh how they pray. Uh and they have the long they have the largest number of octogerians, people look you know into their hundreds, of any other place on earth. And they're all over the world in disparate locations, but they all share common uh nutritional and lifestyle uh approaches. So I've got a ton of books in that vein. And uh on the spirituality end, I've been reading a lot of Michael Singer's uh works, um one of which is the uh untethered soul. Um anything about Michael Singer. Um you know I've got a I've got a but a bunch of books uh uh on spirituality and mindfulness and meditation, got tons of books on how to meditate. I think that's critically important to quality of life. Um and uh and then I I have a number of sort of ancient uh uh uh uh seers and mystics that I read, like Rumi uh is one that I read quite a bit. Uh I also you know listen to a lot of podcasts because my diminishing eyesight, I read a ton for Losco. Yeah, and every class I'm reading three or four hours straight. And uh so my uh the diminishing functionality of my pupils, uh, I can only use them so much uh in a day. So for my own uh personal growth and edification, I turn a lot to uh to YouTube uh videos where I can I can get a lot of information off the internet uh through through talks that have been recorded. Alan Watts is one that I've listened to. He's a philosopher uh from the 60s. That um is uh I highly recommend that you just YouTube Alan Watts videos and it will change your life in a very, very good way. Um so I get a lot of my information online. Uh it's a rich resource. And I'm not talking about the the the you know the the influencers. That that's garbage and poison. But there's a lot of uh there's a lot of wisdom that you can find if you know where to look in the right places. So I I you know I I I read a lot and absorb a lot online about um health and uh and well-being, spirituality, uh theology, uh psychology, Carl Jung, uh the Jungian School of Psychology, very fascinating. Uh so all of that stuff. I just, you know, uh my quench for knowledge and growth outpaces my ability to uh actually read words on pages, but it hasn't uh it hasn't uh diminished my my thirst for that knowledge.
SPEAKER_03:It's funny you say that because someone I interviewed uh recently uh when I was asking about what she uh observed as an element of success of individuals in her particular industry, and what she said, you know, I wrote it down, but I've heard this across the spectrum. And it was the most successful are those who are always willing to learn. And, you know, you sharing this diversity of topics, again, I think it feeds into that, you know, always willing to learn. Uh and I think this is what's made you uh probably a very influential professor here at the school. I know it influenced me, uh, and I'm sure it continues to influence our future litigators uh that are out there.
SPEAKER_00:Uh in that in that uh regard, there is a quote. I forget who uh the author of the quote is, but it's something to the effect of if you're unwilling to change your mind, why have one?
SPEAKER_03:This is true. So true. You've got to at least be open to it. Yes.
SPEAKER_00:You've got to be open to it. You you you you know, life is too short to uh know it all. You're always learning up until your last breath. And um that learning should be, again, aligned with this compelling need and urge to serve others.
SPEAKER_03:Uh I agree. I agree, especially when we're on a large rock hurtling through space, uh, you know, and you start thinking of that uh as opposed to the tunnel vision we can get, yes. Yeah. Uh but hey, I I thank you, uh Professor Lesanne, for taking time out of your day uh to talk to me uh and for the audience. Uh hopefully folks will benefit from this. Uh thank you to the audience for spending your time with us. A special regards to loyal alumni, Louisianans, and litigators in general, and to law professors out there. Um, as your host, Maurice Brungart, I welcome you to join us again next week, and that you invite others to also follow Brungart Law's Lang app, where we provide a little extra perspective because the devil is always in the details. Professor, thank you very much.
SPEAKER_00:Thanks again for having me.