One Lawyer’s Secret Weapon

A lawyer I know, he has a Secret Weapon. When I get around to revealing it, you’re going to be surprised, because it’s so obvious. But it totally works.

First, a pop quiz:

Question One: What do you do when you’re trying to negotiate with an opposing lawyer over something small, but important–say an extension to respond to discovery–which, among professionals–people who wear white collars and silk ties to work, who attended years and years of expensive schooling, passed excruciatingly difficult examinations, swore an ethical oath–would seem to be an easy thing to agree upon–what do you do when this opposing lawyer unreasonably refuses, without any explanation, this simple, routine request?

Question Two: What do you do when you’re sitting across from that same lawyer in a cramped conference room, taking his client’s deposition and, over the course of several hours, he repeatedly insults and demeans you, challenges you to justify every third question, asks no less than five times “how much longer” you’re going to be, persistently interrupts you mid-question to interject the start of what will surely be a long, inappropriate speaking objection, and instructs his client not to answer at least seventeen times?

These questions are not directed to what you do the next day, or whenever you ultimately resort to serving objections, or moving the court to compel answers to the deposition questions and seeking sanctions, or asking the court to appoint a discovery referee.  I’m asking what do you do in the heat of the moment, while your heart rate is still elevated.

If you’re me–and believe me I’m not bragging here–you take everything personally, get pissed off, turn beet red and start talking with the snappy sarcasm of a desperate salesman in a Mamet play. You see: I haven’t mastered the Secret Weapon. I can talk a good game. I’ve written over and over about the wisdom of maintaining a professional, cooperative demeanor in litigation. But when the rubber meets the road I struggle to avoid stooping to an unprofessional opponent’s level, or (gasp) worse. No, I haven’t yet mastered the Secret Weapon.

But you can. The good news is that YOU CAN master the Secret Weapon. When the lawyer I’m thinking of is faced with the above, or worse, he pulls out his Secret Weapon and does this: he simply acts nice. He meets rudeness, lack of professionalism–you name it–with an oversized bucketful of fluffy pink kindness.

It’s impressive to see. Picture Roger Federer being pelted with a barrage of ugly, aggressive cross-court winners and absorbing and converting the energy, speed and spin of each angry ball, only to gracefully return it with nothing more than an easy, gentle lob. In fact, like CIA assassin Jason Bourne, whose manner of calm resolve seems actually to increase in a disturbing direct proportion to any rising threat of imminent capture or death, this lawyer’s attitude of kind, gracious, solicitude seems to actually grow in direct proportion to the lack of professionalism of an opponent.

He invariably takes the high road. He literally kills them with kindness. Is it always easy for him? I doubt it. Is he sincere in his “attitude of kind, gracious, solicitude”? Who cares. He’s getting the job done. In most encounters, his weapon immediately deflates a situation that in my fat, clumsy hands would become a runaway train wreck. It works. It really does. Try it next time you’re dealing with a total asshole less than professional member of our profession, you’ll see.

Learn More

The Trial Lawyer’s Need To Control The Middle of The Board

Visiting with my brother over the Thanksgiving holiday, our talk turned to strategy in chess. I confessed that, after about the fourth or fifth move in any game, I’m invariably at a loss for what to do next. My brother pointed out that, like so many games (and sports), the most important factor is to control a particular environment or space within the board.  “Just like you want to control the ‘T’ on a squash court,” he said, “you always want to control the middle of the board in chess.”

Later the same day, in writing another blog post, I was looking at the brilliant primer on trial advocacy prepared by my former partner, Lee Horton. Among his rules in the Preface, I came across the following:

“I attempt to control the case and the environment in which it is presented. The best prepared lawyer is almost always in the best position to control a witness or the flow of evidence. But controlling the courtroom environment is also important. I try to reduce the potential prejudicial variables in a courtroom to as few as possible. Remember, a juror associates everyone in the courtroom associated with you with your client’s claim. Therefore, I only want essential personnel in the courtroom. I also believe that those which do come into the courtroom should be properly schooled on courtroom attire and conduct. This may sound extreme, but I can point to three large cases that were lost because of a lack of consideration of the potential prejudice which can come from an out-of-control courtroom environment. In one case, the jury got mad because of the note-passing between the defense counsel and their client in the audience. In another case, the jury perceived the defense as dishonest because a paralegal frequently found herself in the bathroom with jurors on a break. In the last example, the jurors resented smirks from unknowing associates who came to watch their first trial.”  (Emphasis added.)

Taken in the most literal sense, I’ll admit it’s something of a stretch to analogize the courtroom environment with the center of a chess board, or the “T” in squash. But I think there is something here worth observing. While just controlling the courtroom environment by eliminating harmful distractions isn’t a recipe for automatic victory, the failure to maintain control at any point in the jury’s presence can be fatal.

In a less literal sense, however, there may be something more to the analogy.  After all, controlling the center of the chess board, or the “T” in the squash court, will always put the opponent on the defensive (at least until she over/re-takes the middle of the board or the “T” area of the court). As I’m a lousy squash player, I’m familiar with the feeling of trying to over/re-take the “T”. In other words, I’m familiar with being on the defensive in squash and, as a result, I lose most games.

But I never like the feeling of being on the defensive in a case or in the courtroom (even when representing a defendant). I do know the feeling, though. Naturally it can happen when one party has far better evidence, or when parties are not in comparable financial positions, such that continued or aggressive litigation will financially exhaust one party (or their lawyer) before the other. But these are circumstances beyond any lawyer’s control (at least any defense lawyer–a prosecutor or plaintiff’s lawyer should be able to choose better cases).

More commonly, though, I’ve seen it (or experienced it myself) by coming “late to the party” or being underprepared for an event, like a deposition or a hearing. I so hate that feeling I try never to be on the defensive for the wrong reasons. Like so much else in our profession, it comes down to preparation. By being the better prepared advocate, I control the “T” of the squash court, the middle of the board.

Learn More

What You Want To Know About Your Opposing Counsel, Part II

In addition to learning as much as I can about my opponent and the nature of his or her practice through his or her website, I also use the following resources to do more research:

4.  State Bar Information.  It’s pretty rare, but I do occasionally come up against someone who’s been disciplined, even suspended.  There are a number of reasons why a lawyer can be disciplined by the Bar, and it doesn’t always signify anything I consider relevant.  But it could, so I try to find out as much as I can.  For example, if the discipline has related to commingling client funds or failing to communicate with clients, it could mean the lawyer does not make it a priority to communicate with his or client.  This could become important later, if we get into settlement discussions and it’s critical his or her client is being kept informed of my client’s offer (or demand).  Information about Bar discipline is typically available on the State Bar website.

5.  Track record.  Does my opponent try cases?  This may not be readily apparent, but if I review the jury verdict sheets (I still use the paper kind) I can sometimes see if he or she has tried any cases in recent years and, if so, what kind of case and what was the outcome.  This information isn’t always available.  But if it is, it can be very revealing.  For example, it might show a pattern of taking meritless cases to trial and losing (or barely wining).  This becomes important when evaluating the likelihood of an actual trial later.

6.  Reported cases.  Has my opponent participated in any appeals that led to reported opinions?  Actually, Lexis and Westlaw even report cases that are not officially published, which further broadens the field.  If he or she was the sole attorney representing a party on appeal, this tells me that he or she probably has a fairly in-depth understanding of the issues and law in that kind of case.  If our new case involves the same issues, this is important information for me.

5.  Finally, I may send an email to some close colleagues and see if anyone knows or has dealt with my opponent before.  This can provide a great deal of useful insight.  One thing I’m looking for in particular is my opponent’s reputation for honesty or civility.  Is he or she someone I can trust when they promise to communicate an offer to his or her client?  Will I encounter resistance if I seek a reasonable extension or continuance?

From this information, I can generally get a decent “feel” for my opponent before I pick up the phone to call him or her and introduce myself (which I always do).  Over the years, I’ve found different information useful for different reasons.  Often, however, I know I’m going to be looking for leverage against my opponent or his or her client.  This can come from a variety of sources, including “situational leverage,” which I will discuss in future posts, such as a disinclination or financial  inability to take a case through trial.  The earlier I learn this the more I can shape my defense accordingly.

One factor to which I never give any weight, which some might find surprising: where my opponent attended law school.  I’ve encountered lawyers trained at the very best (ranked) law schools who had trouble knowing where to sign their last name, and really first rate lawyers who attended lesser ranked law schools.  I usually find experience level to be a far more telling predictor of competence in the courtroom than law school ranking.

Learn More

Follow this blog

Get every new post delivered right to your inbox.

Email address