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.
I previously wrote about the circumstances in which it makes sense strategically, financially or otherwise to involve local counsel. Here I want to draw on my experiences as an attorney who has frequently both hired and been hired as local counsel to offer some suggestions on ways you can be an outstanding local counsel.
One observation at the outset. Some lawyers or firms view the role of being local counsel to another “lead” lawyer or firm as less than desirable. They see it as somehow akin to being a second class citizen in the context of a lawsuit (or, I suppose, deal). While lawyers who have this attitude will usually swallow their pride and do the work, assuming they perceive the engagement as fiscally attractive, they never really put their hearts into it. I’ve had good fortune over the years with the firms I’ve hired as local counsel. And I hope my client firms have felt I brought value to our cases.
But I have sensed this kind of friction on occasion, particularly where my partners and I, as lead counsel, insist we do tasks that local counsel believe (perhaps accurately) that they would perform better and cheaper. This decision is usually based either on our financial arrangement with the client (a flat fee, for example) or because we perceive the client expects that we, as lead counsel, will do the work. There’s not much to say to local counsel in these circumstances beyond, I suppose, get over it.
With that piece of throat-clearing out of the way, here are some thoughts about what local counsel can do to set themselves apart and, in doing so, make future engagements more likely.
1. Put yourself in lead counsel’s shoes. Acting as local counsel is unique and calls for a kind of flexible, outside-the-box kind of thinking. Rather than “how would I handle this (situation, development, procedural requirement, etc.)?” the relevant question becomes “what does the client (i.e., lead) firm need to know in order to make an informed decision what to do under the circumstances.” This can be challenging because it may require a lawyer to suppress or ignore her own instincts about what to do, which sometimes conflicts with what the client/lead firm ultimately decides to do.
2. Don’t take much (or anything) for granted. Experience litigating in multiple venues may give us an idea how things are “generally done.” But some jurisdictions do things radically different. For example, the state courts in my home, California, have a very specific procedural scheme, particularly with respect to expert discovery. Out-of-state practitioners struggle to follow our rules of civil procedure because they are unique. Other states adopt procedures that seem to mirror the Federal Rules. The key for local counsel is not to assume your lead counsel knows what is required, even if your state court procedure is mostly on par with the Federal Rules.
3. What do you know about the judge? This is probably obvious, but one of the reasons to hire local counsel is for information and to have local connections. The best local counsel are active in their local bar association and/or Inns of Court. Excluding improper ex parte communications or other unethical influence, it is really helpful when the judge recognizes and respects our local counsel. Educating lead counsel about the judge is another area that is really helpful. You are our eyes and ears on the ground in the local venue.
4. What do you know about opposing counsel? Ditto from above. Even if not friendly or social, do you have–or can you develop–the kind of rapport with opposing counsel that will easily facilitate extension requests or other courtesies? Does opposing counsel have a pattern? Are they lazy until the last 90 days before trial? Do they always fight hard and then settle? Are they competent in front of a jury? Do they know the judge well? Even if you don’t know the answers to these questions, you should have the resources (i.e., connections within the local bar) to ferret them out.
5. What makes your venue potentially unique? This goes back to not assuming anything. The procedural routines you’ve dealt with your entire career may be completely unique and unfamiliar to your lead counsel. Think of this on both micro and macro levels.
6. Exponentially increase lead time. I’ll confess this has been a personal challenge, but you absolutely must think far in advance and let your lead counsel know about upcoming events and deadlines.
A perfect example is California’s summary judgment procedure. I cannot speak to how summary judgment motions are scheduled in other jurisdictions, but the California Code of Civil Procedure requires dispositive motions be heard 30 days before trial. The Code also requires 75 days notice (assuming personal service) of the motion (with additional notice if served by mail, overnight, etc.). While this seems easy to calculate, the rub comes with the clogged dockets of our virtually bankrupt state court system, which can make it all but impossible to ultimately schedule a hearing date within the necessary window if a party does not begin the scheduling process very early. There is authority which suggests the court’s docket, etc. cannot deny a party the right to bring a dispositive motion, but the practical impact of delay will include expensive additional, sometimes nail-biting procedures, like ex parte applications to have motions specially set the hearing and/or to reduce notice.
7. Communicate, communicate, communicate with lead counsel. And then make sure you communicate some more. Seriously.
8. Don’t friggin’ poach the client. The idea behind taking this work is not as an angle toward poaching the client away from lead counsel. If you see it otherwise, you’re not doing anyone, including yourself, any favors.
9. Do what you can to make lead counsel shine in the eyes of the client. When you’re hired by a general counsel, legal staff member or claims adjuster, it should be an important goal to make that person look good in the eyes of those to whom they answer, whether it is a board of directors, a more senior legal staff member or a claims superintendent. When you get a local counsel gig, make it a goal to make your lead counsel shine in the eyes of their client.
Because I am at the stage in my career where I am aggressively building my own practice, I take opportunities to act as local counsel for what they are–great opportunities to work for new clients and with different lawyers. There’s no reason you shouldn’t do the same.
In all but the rarest instances, I come away from a lawsuit with a clearer memory of my opponent’s lawyer than of the opponent. When I get involved in a new case, I’ll often do some research to see who I’m up against. Is she a solo or a member of a firm? Have my colleagues dealt with her in prior cases, or do I know anything about her by reputation (which, as we know, can be grossly inaccurate). As we wind through the case, I form or refine my impression of her. Generally, by the end of a case, we part ways either as friends or at least as professionals. Even in those instances in which I’ve had to be aggressive, I try not to let it get too personal.
That’s not to say I always finish a case feeling “respect” for my opponent. Let’s face it, some lawyers just don’t deserve it. And, while I don’t like to generalize, I can identify four categories of opposing counsel for whom I don’t usually feel respect at the end of the day. Are you one of these?
The Overt Asshole
This post (the entire blog, for that matter) is built on the assumption that lawyers are not per se assholes. If you hold the opposite view, then I’m not writing for you–go back to playing Farmville on Facebook.
It’s not hard to gain entry into this category, at least in my book. Refuse courtesy extensions, yell at me or my client during a deposition, make threats you know you could never carry out, insult my client, my ethics or my skills, talk down to me . . . You get the picture. What’s surprising is how seldom I’ve finished a case and branded my opponent an Overt Asshole. Perhaps the bigger surprise is that I can think of more lawyers representing co-defendants who qualified for this title than lawyers representing parties who sued my clients.
The Liar
Ah, the truth-challenged. Even nations at war are expected to adhere to a code of ethics. There’s a special circle in hell for those that don’t, and the same is true for lawyers. Telling lies is just dirty pool and should never be rewarded. Even on those instances in which it could be harmless, it degrades our profession. I’m not talking here about Bill Clinton-style fibbing under oath (though that sucks, too, but for different reasons). I’m referring to making blatant misrepresentations to the court orally or in papers. I’ve found there is often an overlap between The Liar and the Overt Asshole.
The BFF
Some lawyers think it’s strategically advantageous to be your Bestie from the get-go. This isn’t to say a genuine friendship can’t grow out of litigating a case together. I can count a handful of former opposing counsel whom I consider true friends. But when there’s an obvious strategic motive behind playing the role of best friend while litigating a case–and it’s usually possible to tell if that’s what’s going on–then the BFF is really little different from The Liar, right?
The Legend-In-His-Own-Mind
This is the guy who needs a 7-series BMW with extra trunk room for his ego. This is the guy who did pretty good in a trial once and will force his opponents to re-live those moments of glory in Technicolor. This is the guy who boasts to his opponents during deposition that he’s “a different breed.” (True story!) You don’t want to see him in action in front of the jury in this case! You know the type, right? If you don’t, you’ll encounter him some day. There are crossover possibilities here with the Overt Asshole, as well.
Do any of these describe you? In the interest of full disclosure, I’ll admit to being a little bit of each–except The Liar–at one point or another during the last 20 years. But I guarantee those weren’t my finest moments.
I recently participated in a conference about negotiation. I left with a list of negotiation “pointers,” short strategies to help keep your eyes on the prize when negotiating. I’ll share five good ones here.
1. Set your goals ahead of time and come prepared with alternatives. You (should) know you will be making concessions in the negotiation process; try to think of what concessions are acceptable and where you’ll need to draw the line. In this planning, also anticipate your opponent’s points and develop responses.
2. Make sure the other side feels heard and understood. Then make sure they hear and understand you. If either party to a negotiation is not being heard, it’s not really a negotiation.
3. Don’t be dragged into an emotional response. Condescension, rudeness or bullying should be firmly met. Don’t back down–remind them that you came prepared to make a deal and that you thought they did too, then transition back to the points you want to discuss. Once your opponent realizes their tactics are not intimidating you, they will likely stop.
4. “Horse trade” when making concessions. Try to make concessions conditional on an equal or greater concession by them. Also, before making a concession, try to find out what additional concessions they will ask for before signing an agreement.
5. Don’t be afraid to invoke a “cooling off period.” If you reach an impasse, or are not sure what move to make next, consider asking your opponent to give you 24 hours to consider their last move. A corollary is not to be so eager to make a deal that you make concessions you will later regret.
And, remember, we’re all counting on you.
(I so wanted to accompany this post with a still photo from the scene in Training Day in which Denzel Washington, wielding a sawed-off shotgun, tells Ethan Hawke’s character, “You know I’m surgical with this bitch!” Sadly, I couldn’t find a good still from that scene, so I used this lame stock photo instead.)
I’m a big proponent of serving written discovery that is “surgical,” that is, as narrowly drawn to fit the facts of the case as I can make it. Why? First, because I am a lawyer, my time is expensive. I don’t like to waste my client’s money writing discovery that is not likely to yield anything of value. But it’s not just that.
Drafting and serving unfocused and overly broad discovery will lead, in most instances, only to objections (“Overbroad!”) and, even if there are substantive responses, chances are they’ll be weak and of little value. As I’ve earlier written, you and your client should almost always “go to the mat” if necessary to obtain complete discovery responses. This means time spent reviewing the crappy objections and responses, writing one of those spectacularly painful “meet and confer” letters, getting a spectacularly painful letter in response, possibly writing another and/or having an unpleasant telephone call, followed by a motion which you may or may not win because the discovery was crappy and overly broad in the first place. All of this is time-consuming and, therefore, expensive for your client. In most jurisdictions, moreover, the court has discretion to force the party who loses a discovery motion (which could be you) to pay the other side’s attorney’s fees. Ouch!
A second reason I try to make my discovery surgical relates to how I want to be viewed by my opponent. While there are certain times when, for strategic reasons, I want my opponent to view me as unsophisticated and/or unprepared, I usually desire to instill the opposition impression. Nothing shows I haven’t a clue more clearly than 100 unfocused interrogatories, most of which skirt the real issues in the case. On the other hand, well drafted discovery shows not only that you know how to practice law, but also that you know what facts will win or lose the case. If your opponent happens also to know what she is doing, she will take you more seriously throughout the case, including at important times like when you are mediating or discussing settlement. If, on the other hand, your opponent is a lawyer who has gotten in over his head, recognizing that you know what you are doing will make him that much more eager to resolve the case before trial. Fear of submitting a case to judge or jury can be huge leverage.
So that’s my spiel for why it makes sense to serve surgical discovery. What about the how? A couple of ideas. First, it should be no big mystery at the discovery stage what the major theories of liability or defenses will be. I recognize we often refine theories and defenses based upon what we learn in discovery, but the complaint and answer at least frame the case in a general way. I like to take the jury instructions for the theories and defenses and draft discovery that seeks facts (and documentary evidence) that will support or defeat each element of a cause of action or defense. I recognize this isn’t revolutionary, but it works.
In addition, I like to involve at least some of the expert witnesses who will ultimately consult and, potentially, testify on behalf of my client as early as I can in the case. By meeting with these experts earlier than later, I can understand the technical issues likely to be in dispute. I may involve the expert in drafting discovery requests that are likely to yield meaningful information. I recognize that involving an expert early in the case can be costly. On the other hand, early expert involvement can ultimately save your client money in lots of different ways, starting with drafting useful cost-effective discovery, and including explaining earlier than later how the case you and your client thinks is so good actually sucks on a technical level.
So, go on, be surgical with that . . . er . . . interrogatory.
I last wrote about a recent presentation made to my office by a retired judge, “Practical Advice and Perspectives From the Bench.” While I found it most compelling (disturbing) to learn that many (most?) jurists in Los Angeles Superior Court, have a policy of denying even meritorious motions for summary judgment, the judge also offered several items of valuable advice. While much of this will be familiar to lawyers who regularly appear in court, it is all useful and some of us, myself included, benefit from the occasional reminder. So, in no particular order, here are some of his more valuable insights and suggestions:
1. Never, ever, ever preface any argument to any judge using “With all due respect . . .” This conveys the opposite, essentially, “You, Judge, are a moron, incapable of understanding the most basic legal concept . . .”
2. Do not give equal time and/or space to weaker arguments. This dilutes the stronger arguments. Always lead with your best argument.
3. Avoid repetition. In the law and motion context, do not repeat arguments from your client’s motion in your reply. And don’t orally repeat the argument again during the hearing.
4. Don’t argue when the tentative is in your favor or you’re otherwise winning. Sit down and shut up. Don’t snatch defeat from the jaws of victory.
5. Always give pin-cites (i.e., to the specific page within an opinion). While this is how I was trained and how I practice, I would not have guessed pin-cites were so important to judges (and research attorneys). The judge said his practice was always to look up cases lacking pin-cites and 50% of the time the case did not stand for the cited proposition.
6. Refrain from petty complaints about opposing counsel. The judge hears this all day long and you’re not furthering your cause, even if you’re 100% correct.
7. When you appear on a multi-party case, take the time to orient the judge as to who the parties are, how they fit together in the controversy. We apparently have “no idea” how confusing and disorienting it is to the judge when five different sets of lawyers appear on a case.
Again, many of these are either common sense or things most of us already know. But, coming as they did from a retired judge, I thought it would be useful to share them.
I’ve written about dealing with difficult or overly coaching counsel when trying to conduct a deposition. Considering that the entire purpose for taking a deposition is to gather evidence, and a coaching or otherwise difficult opposing counsel can undermine this goal, this is an important issue. Unsurprisingly, Professor McElhaney, in his excellent Litigation (aka the Bible), offers a wise strategy for dealing with these situations. In a chapter entitled “Pit-Bull Depositions,” he discusses The Wedge.* Because I cannot say it better, here’s a quote: “[T]he lawyer is coaching the witness because he is afraid of what the witness might say. That means he has not adequately prepared the witness for the deposition. It also means he is afraid you are getting close to something that might help your case or hurt his. . . . [T]here are probably better things to do than run to the judge when a lawyer coaches a witness during a deposition. One of them is to drive a wedge between the lawyer and the witness.” (Id. at 53.)
How to do this? Professor McElhaney suggests you change the dynamic of the deposition, so that the witness begins to see how her attorney is interrupting her and preventing her from telling her side of the story. The witness will likely already be irritated that her lawyer did not adequately prepare her for the kinds of questions you are asking (or perhaps did not prepare her at all). Capitalize on this dynamic by encouraging the witness to finish telling her story. In addition to the above, I would add that a calm, prefatory response to the attorney might also be useful. I’m thinking something along the lines of, “Counsel, you and I both know that what you’re doing is against the rules and making the deposition a miserable experience for your client. That’s not my goal. It’s also going to make this take much longer than necessary because I have to re-ask the question every time you do it. Your client is entitled to tell her own version of the events, let her do it. We can hash through your technical objections later with the judge.”
This, of course, requires the examiner to maintain a calm, professional composure throughout. Raising your voice, or even scowling will tend to reinforce the Us vs. Them dynamic and cause the witness to cling to her lawyer, regardless how poorly she was prepared for the deposition.
*McElhaney credits New York lawyer Patricia Hynes for this strategy. That either renders this post triple hearsay or I owe Ms. Hynes a royalty.
In case this term is foreign to you, a “running objection” is sometimes offered by a party taking a deposition (or during a hearing or trial) when it appears that they are going to repeatedly encounter the same or similar objection. Here’s an example of how it would arise:
Examining Attorney: “Why did your supervisor finally decide you should receive discipline?”
Defending Attorney: “Objection, calls for speculation, lacks foundation.”
Examining Attorney: “Counsel, why don’t we just agree you’ll have a running objection, so you don’t have to keep interrupting?”
Defending Attorney: “Thanks for the offer, but I would prefer to address each question separately.”
There are probably a wide variety of reasons why attorneys offer running objections. I’ve even done it. First, on the surface they would seem to streamline the deposition process, saving both time and money, since each individual objection consumes time and transcript space. Why not give/take a running objection and cut down on the interruptions, shorten the deposition and transcript?
But I almost never accept the offer if I’m attending or defending a deposition. Why? First, while I’m not interested in impeding the search for truth, I don’t view my job at a deposition to include making the examining attorney’s job an easy one. If he/she asks a crappy question, it’s his/her fault, not mine. If this results in repeated or even frequent objections, then he/she should hone his/her deposition skills. It’s not my goal to interrupt the examiner’s flow–which is inevitable every time I make an objection–but it is an incidental benefit of objecting to protect the record. If the examiner want’s to reduce the incidence of these interruptions, he/she should ask proper questions.
Second, the principal purpose of making an objection is to preserve the objection so the judge can later consider it and make a ruling if the deposition transcript is used at trial (or as evidence in another capacity, say in support of a motion for summary judgment). The examiner has a choice, upon receiving the objection. He/she can push forward (assuming there has been no instruction to the witness not to answer) and require the witness to respond. Or, he/she can consider the objection, conclude it may have some merit and rephrase the question. The benefit to me, as the attorney representing the witness, is that my witness will potentially get a proper question. This is important where the objection to the question is that it is vague and ambiguous. While such an objection may not be ultimately sustained by a trial judge, it might prompt the examiner to rephrase the question so that my witness is responding to a question that is less vague, less ambiguous.
Finally, it can be cumbersome to obtain a ruling on a running objection. For example, in the context of an all day deposition, imagine I accept the offer of a running objection at 11 am, which ends up on page 45 of the transcript. The examiner continues to ask objectionable questions for the remainder of the day, but I stay mum based on the running objection. Later, the case proceeds to trial or a motion for summary judgment is filed, and a bad, objectionable question from late in the day is about to see the light of day. I want to obtain a ruling on the objection, but it becomes a cumbersome exercise, as I have to point the court back to a much earlier part of the transcript, where I obtained a running objection.
This is not to say that running objections are a bad idea. I just prefer, if I am defending a deposition, to deal with each question individually. If you do agree to a running objection, be sure to remain vigilant. If a question is objectionable for an additional reason not addressed by the running objection, it is important to raise the additional objection or risk waiver.
As I said before, it seems to me that most depositions in most kinds of cases should be reasonably capable of completion in 7 hours or less. This is probably a radical overgeneralization, but it’s been my experience that most witnesses don’t have more than 7 hours of relevant testimony in them. For those other cases and witnesses, in which it will be hard to finish in that time, here are 5 strategies that should help:
1. Give yourself more time to prepare. Like everything in litigation, preparation is the key to success. If you typically spent a day preparing for an all-day deposition without the time limitation, spend a day and a half preparing now. If you generally eschew using deposition outlines in favor of a “come what may” approach, consider making at least a rough outline of topics you absolutely must cover. The alternative is to risk running short of time without having covered crucial topics. The argument against using an outline is that, using an outline causes us not to listen carefully to responses; this can be overcome with effort.
2. Don’t be wed to a chronological or other artificial order of topics–get what you absolutely need first. Speaking personally, I generally have an order I use over and over in taking depositions. It is one that follows logically from how I see the case. This can be a problem, though, when time is limited. Then I have to prioritize based on order of importance, rather than imposing a chronological or other more familiar order of topics. If, for example, there’s an especially important affirmative defense available, I reorder my examination in order to cover what I need to invoke that defense at the beginning, even if it doesn’t seem to make sense. (This has the collateral benefit of “throwing off” opposing counsel who expected you to begin at the beginning. It’s fun to see them look confused.)
3. Make a record that will support a motion for more time, if that becomes necessary. You may need more than 7 hours regardless how you prepare and how smoothly the depo goes. If this is the case, begin early creating a solid record to support judicial relief from the limit. The new section, CCP 2025.209(a) includes this language: “The court shall allow additional time, beyond any limits imposed by this section, if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.” There’s a lot of room here. Either “witness XYZ cannot be ‘fairly examine[d]’ in 7 hours because . . ., ” or “as demonstrated in the transcript of the first session of her deposition, XYZ [or her lawyer] impeded and delayed the examination by . . . ” Videotape of the depo may help illustrate evasive responses, long delays or lengthy, meritless or talking objections. In one case, we relied heavily on the videographer’s time-keeping records to show long delays.
4. Resist the tendency to fight opposing counsel on the record. As a reminder, taking a deposition need not be a contact sport. This is especially true if you’re trying to get useful testimony and don’t have enough time. Unreasonable objections or instructions not to respond should basically be ignored until after the deposition, when it’s time to “meet and confer” prior to filing a motion to compel responses to questions and/or a motion for more time. Focus, don’t get distracted!
5. Go off the record whenever there’s going to be “dead air.” If you hand a witness a document that will take a few minutes (or more) to read, go off the record while the witness reads it. The same is true if you need to re-group or review your notes or a document between questions. Just take a break.
I hope these help. Good luck.
Cal. Code of Civ. Proc. 2025.290 becomes effective Jan. 1, 2013.
I recently defended a fairly contentious deposition. To my surprise, my witness complained to me during a private meeting halfway through the deposition, “I wish you’d really give it to him. If I was a lawyer, I’d never let him (opposing counsel) get away with that.”
I was frankly surprised. While I wasn’t obstreperous, I hadn’t been a shrinking violet, either. The examining counsel had asked mostly crappy questions and my witness had been really well prepared (in my not-so-humble opinion) over the better part of two full days. I thought the deposition was going swimmingly.
I sensed that the problem, from my witness’ perspective, was that she was wounded by the way the examiner was treating her and bitter that certain facts she viewed as private (family status, country of origin, etc.) were being dragged out of her in what appeared to be a harsh, public way. She’d never been deposed before, and wasn’t used to how lawyers routinely twist and torture the meaning of a witness’ testimony. I realized it wasn’t that she felt that I wasn’t doing a technically capable job, but more that she expected any lawyer on her side to exact a pound of flesh from the examiner. After all, what else was I there for? She wanted John Wayne with a briefcase.
I told her, “I actually think you’d find it harder to concentrate, understand the questions and answer if I had really mixed it up with him.” This is based on experience. In the past, when I’ve encountered a real asshole examining my witness, or when I’ve been flabbergasted by a particularly egregious line of questions, or just had too much caffeine, I’ve turned into a real jerk. (Turns out I can portray a pretty good jerk–who knew?) I’ve always reflected afterward that, while I might have dished out some really cutting barbs, had I been a good advocate?
I certainly hadn’t improved the record. (In fact, I’ve worried after particularly hot tirades about the possibility my Mamet-esque monologue might find its way into an exhibit read by the judge.) Worse, though, I’d always felt afterwards that the additional tension caused by our dust-up exacted a psychological toll on the witness. Sure, there are people used to concentrating and communicating in abusive environments. But I’m sure the abusive environment rarely made them concentrate or communicate better than they would if those around them treated each other with respect.
At the end of the day, as I explained to my witness, what matters most is the transcript–the written record. (Unless the deposition is videotaped.) Whether I verbally punish the examining lawyer, or even make it more difficult for him to do his/her job, it’s unlikely to improve my client’s chances of prevailing, particularly if I engage counsel in a vitriolic exchange which makes it hard for anyone to think. The best revenge, I told my witness, is to win the case!
I’ve been embroiled in a multi-week deposition bonanza in a religious discrimination case. Yesterday, though, I experienced a first. We were deposing the plaintiff. Her lawyer is very seasoned. While my co-counsel was conducting the examination, I was astonished to see what looked like plaintiff’s counsel passing subtly passing his client a small, square post-it note with writing on it. I watched a little longer and, lo and behold, the plaintiff, while trying to respond to a question, looked down and read the note!
I called him on it. To my amazement, plaintiff’s lawyer became indignant. “I will counsel my client in any way I see fit,” he announced. “Really,” I said. “Well, don’t pass notes while questions are pending.” A half hour later I saw him do it again. Again, I called him on it. This time he became even more indignant.
I suppose I should do some research to find out if coaching one’s client in deposition by means of written notes could somehow be an approved method of advocacy. If it’s not prohibited, it certainly should be. Who knows what he was writing to her. It was probably just something innocuous, like “slow down” or “just say yes or no.” On the other hand, it could have been substantive information, substituting the lawyer’s own memory for that of the witness.
Either way, depositions are not three-way conversations. They are question and answer sessions designed to uncover facts. I know there are all kinds of competing views on how involved the lawyer representing the witness should be in influencing the testimony, and I’m not above making speaking objections if I feel it’s necessary to protect my client. I’ll also “remind” my client that certain questions ask only for yes or no, or point out that he or she has answered the question. But I draw the line at passing notes back and forth during examination, even if only because it creates an appearance that something shady is afoot.
Like I said, my opponent is a very seasoned employment lawyer. He’s brought his young protege associate along with him to every deposition. I wonder if the protege is going to think it’s ok to pass notes to a deponent. Or if he’ll just assume all defense lawyers are jackasses because I called out his boss on something I think is unethical. My hope is that the young lawyer will think for himself, and decide for himself whether it’s ok to influence evidence gathering this way. Mentors are important and valuable, but not if they carelessly pass on bad habits to impressionable young lawyers who represent the future of our profession.
I used to think it was a worthy skill unique to litigators: the ability to be harsh and aggressive when it seemed appropriate in the course of representing a client (in a deposition, for instance), but turning immediately friendly and professional as soon as we’d gone off the record and there was no question or objection pending. After all, didn’t it show that, as lawyers, we were in complete control of our emotions when we could turn our temper on and off, like John McEnroe at a Wimbledon final?
I’ve come to think differently now. I just finished a deposition with a crusty older litigator and I found his penchant for blowing hot and cold disconcerting. I was not doing the questioning, but while we were on the record he would make frequent, loud outbursts at the female lawyer conducting the deposition of his client. She, too, was seasoned and seemed unfazed by his temper, though she did ask him a few times not to yell at her. When we took breaks, he would almost instantly turn cordial, asking her where she lived, about her kids, etc. She played along, as though such vacillation of temperament was the most natural thing in the world.
The rules of ethics and most judges expect lawyers on both sides of a case to treat each other with “civility.” Are loud, threatening outbursts transformed into civility just because we change from bad cop into good cop when aggressivity is no longer called for? I don’t think so. Certainly there are going to be times during a deposition, negotiation or even a hearing when zealous representation calls for us to “kick it up a notch,” and establish a line we don’t expect will be crossed. But I doubt the experienced lawyer making the loud outbursts during the deposition would have behaved the same way during a trial–even a bench trial. So, why should he behave any differently just because there’s no judge or jury present?
I’ve been guilty of this in the past, though I always found it more difficult to instantly change from nasty bad cop to friendly good cop. When our communications turned cordial, I usually felt inauthentic. At the end of a full day of this, I was invariably exhausted. I still get riled sometimes, but I try (not always successfully, I admit) to maintain civility even when I feel my opponent is being unreasonable. I suspect, though I have no evidence to back it up, that litigators would live longer, happier lives if we could just cut out the vacillation between hot and cold and just treat each other civilly all the time instead.
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