Do You Solemnly Swear…

In positions of leadership you are bound to be confronted by the unknown; it comes with the territory. Fred Engelfried recalls a time when he was subpoenaed and the impact this "unknown encounter" had on him.
Chief Executive columnist Fred Engelfried recalls a time when he was subpoenaed and the impact this "unknown encounter" had on him.
Chief Executive columnist Fred Engelfried recalls a time when he got a subpoena and the impact this “unknown encounter” had on him.

Sooner than I would have preferred, very early in my career, I became a ‘smoking gun’ witness in a $500 million lawsuit brought by the SIPC against ‘insiders’ of a closely controlled public company. The experience ranks among the top 10 challenges I have faced in business as well as one of the greatest influences in preparing me for future encounters with the ‘unknown.’ But, it didn’t start well!

I received a letter advising that I should gather any information I might have related to the case and bring it with me if and when I was subpoenaed to testify. I consulted an attorney who guided me through the process, but also insisted that I have a signed hold harmless agreement with the SIPC in the event they called me. He got their consent easily as I was a witness and not an accused and they agreed to co-sign if and when they called me and…they called me!

Our kids were in elementary school at the time and one fall morning a driver parked in front of our home, stepped out, and began talking to our son who was waiting for the school bus. My wife, always protective, rushed out and challenged the driver. He was there to serve a subpoena on me but she sent him packing telling him he’d have to get up a lot earlier if he wanted to find me at home in the morning. She then let me know what had happened; I contacted my attorney and he contacted the SIPC’s counsel. By midday, the SIPC’s counsel had reaffirmed the hold harmless agreement and I accepted the subpoena the following morning.

The first day of testimony was grueling. There was an attorney for the SIPC, three defense attorneys, a court stenographer, a video camera operator and my attorney. We got off to a bad start. Even though I was a witness for the prosecution, on counsel’s advice, I refused to answer anything, even my name, until I had the signed hold harmless agreement.  Once that was understood, it was handed over and the ordeal began in earnest.

Eight hours the first day! The process was intense. I would be asked a question and at least half the time, one or more of the three defense attorneys would object to the question. Eventually proceedings would come back to me.  I became rifle focused that day, listening carefully to the arguments between the attorneys while answering crisply with facts and not opinions. When we adjourned for the day I was ‘wired’ as never before.

Once in my car and on the road, I checked messages and returned a call from a client.  He thanked me for getting back to him and told me what was on his mind.  Without hesitating I responded ‘John, you’ve asked me three questions, let me answer them one at a time.’ Damn – I sounded just like one of the attorneys from the day’s proceedings. I immediately pulled into a parking lot and apologized, explaining the grueling eight hours that had just ended. What a shock…in the course of a day I had internalized the rules of engagement and was bringing them home with me. Not good!  My client completely understood and when we finished our conversation I continued the drive home.

My wife listened intently as I chronicled the day’s proceedings. I essentially went into core dump and in the end, with her help, was re-grounded. The next day was four more hours of deposition but this time it was as if I was outside of the proceedings looking in instead of being deeply immersed in the fray.  I was not intimidated nor was I stressed…I was composed; I now understood how the process worked.

In positions of leadership we’re bound to be confronted by the unknown; it comes with the territory. From this early experience. I vowed never to permit the same ‘unknown’ to provoke the same ‘wired’ response in me, for if it did, I would have learned nothing.  If I am to be stress challenged it must be at a higher and more complicated level than anything I’ve encountered before.

Postscript: Thirty years later I was well prepared when sued (unsuccessfully) for patent infringement by a billion-dollar competitor. Lesson learned.

Read more: How CEOs Can Navigate Legal Challenges


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