Tag Archives: opposing counsel

One Lawyer’s Secret Weapon

yrtA 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.


Be A Superlative Local Counsel

asdfreI 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.


What Kind Of Opposing Counsel Are You?

tumblr_md2rdeSCJS1re7db0o1_500In 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.


Five Sound Negotiation Pointers

90I 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.


Why And How You Should Get “Surgical” With Your Discovery

99ii88uu(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.


Some Other Things The Judge Said

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.


Driving McElhaney’s “Wedge” Between Your Opponent And Her Counsel

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.


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