(323) 652-9451(805) 845-1752
(323) 652-9451I know that I am not alone in feeling the inclination sometimes to dispatch a really sharply worded letter or email to my opposing counsel. I’m talking the kind of letter that says a big, snotty “so there!” so often it feels like a one-two punch twice in every paragraph. I know I’m not alone in this urge because I’ve been on the receiving end of such letters and emails from opponents whom I discovered later to be, deep down, pretty nice people.
I’ve contemplated why we feel the urge to do this and, further, why we indulge it more frequently in writing than in person or over the phone. I believe it’s a manifestation of the fight-or-flight response that is apparently part of being human. But I also believe we find it much easier to take an aggressive tone with someone when our communications are mediated by time and distance. Using myself as an example, I have at times written aggressive things in correspondence that I would never have had the gumption to say in person or over the phone.
Let me go on record saying here that, in all but a few instances, I’ve ultimately regretted taking an “uppity” tone in letters to opposing counsel. This is so true that I’m very sensitive to the tendency now. I take care not to send a message or letter that I’ve written when angry, hungry, over-caffeinated or all three, at least until I’ve given myself an interval to cool off and critically re-read what I wrote. The reason is that, on balance, I’ve vastly preferred the practice of law–and procured better results for lower fees–when I’ve tried to maintain a cordial relationship with my opposition.
It’s not always possible. Cordiality, like professional courtesy, is a two-way street. If my opponent mistreats me, I’m not going to be a doormat. And, during the course of a case there is bound to be occasions when we rankle one another. It’s unavoidable in a practice–litigation–in which we are inherently at cross-purposes. On the other hand, if I’ve stayed professional in my written communications, I find it vastly easier to get along in person.
The absolute worst situation is where I’ve not met in person or established any kind of relationship at all with my opposition other than an exchange of letters laced with snide comments. When the time comes for one of us to ask a favor (and that time always comes) and a phone conversation is required, there’s nothing worse than trying to shrug off the ill feelings that have accumulated through our letters. “How are you today” just sounds hollow. The balance of power in these circumstances is always tipped in favor of the lawyer who does not need the favor (an example of situational leverage, I assure you). I vastly prefer to be the one who’s taken the high(er) road and in the position of granting the favor than the lawyer who’s been asshole and is now on his knees begging.
Learn More
Yesterday I wrote about why discovery should be limited to questions or requests which are directly calculated to lead to useful information. I just need point out a single exception to this view: discovery through depositions.
Depositions (live question and answer sessions, recorded by a stenographer, in which a witness is sworn to testify under oath) present an unparalleled opportunity to gather useful evidence. But I’ve found that sometimes it’s necessary to ask a few (or several) extra questions to get the kernel of information you’re looking for (or didn’t realize you were looking for).
Certainly depositions should not be an exercise in free association thinking. Whether the questioning attorney uses an outline or not, there is no question that preparation is needed and you should have a very clear idea going into the deposition what you’re trying to establish. But, beyond establishing exactly what you’re looking to establish, don’t be afraid to explore topics in greater–even random–detail. I’ve seen caselaw suggesting that discovery should not be a “fishing expedition.” When it comes to depositions, I disagree. Don’t be afraid to “fish.”
The most important skill in taking depositions is not asking clever questions, but listening. Only by listening closely, not only to the substance of the responses, but also to intonation, hesitation and a constellation of other emotional “cues,” can we recognize when we might be “closing in” on a sensitive topic. Why is it a sensitive topic? We’ll never know unless we ask the question, and a follow-up question, and another, until we explore it fully. This take patience and persistence.
This makes depositions longer and more costly, which flies in the face of my typical mantra to simplify and be more lean and cost-effective. But there are times that loose, creative deposition questioning will lead to evidence we would never discover any other way. The big reason these loose, unfocused questions can yield better results than a response to written discovery is that written responses are always “filtered” through the mind of (or completely conceived and written by) the witness’s lawyer. That filter is generally missing in a deposition.
Even with this caveat, however, my view remains that any kind of discovery–depositions or written questions or requests–should only be undertaken strategically. While written discovery typically yields information that is carefully choreographed by attorneys, deposition questions can yield important, game-changing evidence precisely because the information is not mediated through the mind of a lawyer. In other words, you have to dig deep to find the gold!
Learn MoreI ran across this post by Karen Koehler, at a blawg I really like, The Velvet Hammer, which highlights something I’ve known for a long time: you’re far better off trying a case against an experienced, high quality lawyer, than someone who’s a newbie or careless, or both. Karen draws on her experience trying a case against a really poor defense lawyer. She won, but in the post-verdict discussions with the jurors she learned that they felt so sorry for the defendant because she had such a bad lawyer that they felt they had to “even things out.”
I echo this sentiment, but I would also broaden it to include everything from the filing of a complaint through trial. “Challenged” lawyers make our job harder–and the case more costly–from day one. They don’t know the value of the case, its strengths or weaknesses, so they can’t every talk realistically about settlement (forget about actually reaching an early resolution). They don’t follow the rules, so it’s up to the responsible lawyers to comply with the rules, including venue-specific or judge-specific procedural nuances. It seems like they’re never available to address anything substantively. They fight battles over the wrong things–again wasting time. They file improper briefs, like sur-reply briefs, complete with brand new evidence, which fouls up the entire process.
We all started somewhere. I was fortunate to have great mentors and some really great training (which didn’t prevent me from still making some stupid mistakes). But the goal should be to improve and try to learn from mistakes, not to keep making them.
Lawyering is like tennis in that the quality of your opponent brings out the best in your game. I’ll take a Federer or Nadal any day.
Learn MoreIn 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 MoreOne of the first things I look at when I get involved in any new case is who is my opposing counsel. Though I’ve never practiced in a small town, the legal community in Southern California is smaller than you’d think when it comes to lawyers who concentrate their practice on a particular area, such as employment discrimination or product liability lawsuits. If the lawyer is someone I’ve come up against before, I generally have a pretty good idea what to expect. But if the name or the firm is unfamiliar, I like to do some research, to find out who I’m up against. Here’s what I look for, why, and where I look to find it:
1. Firm or solo practitioner. Is he or she a part of a partnership or a solo? This is usually evident from the caption of the complaint or letterhead if we’re in the presuit stage. Why do I care? If it’s a mega-firm, I expect the opponent is well-funded (by their nature, big law firms tend to be expensive, though not always) and I’m likely to encounter a “team” of lawyers on the other side. This doesn’t make the case easier or harder to win–it’s just a factor. If it’s a smaller partnership or solo, and the case is one taken on contingency (where the lawyer fronts time and expenses) the ability of my opponent to properly fund the case, through trial if necessary, may become a factor. Sometimes I will see an anomaly. If, for example, a partner from a high-powered BigLaw firm has taken a small case on contingency (a rarity), it suggests he or she may have some personal stake in the outcome. Perhaps the party is a family member or close personal friend. In either event, the lawyer may not be as objective about the case as if it was an arm’s-length representation.
2. Bar number. How seasoned is my opponent? Assuming they were not previously admitted elsewhere (a dangerous assumption), I can make an estimate based on Bar number. Whether I’m facing a new lawyer or a veteran does not, by itself, make the case harder or easier to win. But I know from experience that a sole practitioner fresh out of law school will tend to exercise different judgment than someone who has been practicing for a few years or longer.
3. Website. I access the opponent’s web site. I still sometimes encounter lawyers working by candlelight who have not invested in a website. When this is the case I picture (perhaps unfairly) a caveman (caveperson) lawyer on the other side. The problem is that some cavepersons really do know how to build and try a case (and connect surprisingly well with jurors–some of whom are also cavepersons), so it’s not any automatic comfort. Assuming there is a website, this provides a wealth of information. For example, do they focus their practice or dabble in every area under the sun. Do they have a professional picture, or are they wearing a flowered Hawaiian shirt?
In Part II of this post, I will explore additional sources of information and what kind of information I consider useful and why.
Learn More
