This article is reposted from Litigation News with permission of the publisher and author.
Name-calling is unprofessional, I know. But to quote Mark Twain, “The difference between the almost right word and the right word is really a large matter—it’s the difference between the lightning bug and the lightning.” “Jerk” is the right word, but by “jerk” I mean those (thankfully) few attorneys for whom getting under their adversary’s skin seems more important than the result they achieve for their client. You should also know that “jerk” is my word. No one quoted in this article ever used that word to describe an opponent.
So let us begin, and let us begin with you. A proverb found in Luke says, “Physician, heal thyself.” Counsel, heal thyself. Your attitude and how you approach this issue is everything.
You signed up for this duty. No one put a gun to your head and forced you to pick trial work. If you wanted peace and quiet, you should be drafting wills for a living. I know you would like it if everyone were as reasonable as you, but once you accept the fact that you have picked an area of law that possibly contains the greatest concentration of jerks, you’ll be in a much better frame of mind. Jerks come with the territory. Confrontation is like oxygen to some attorneys. Live with it.
Next, let’s turn to the jerk. To the pure jerk, the fight is more important than the result he achieves for his client. As they say in Texas, “He’s all hat, no cattle.”
I believe that, as a general rule, jerks are not as successful as those attorneys who keep their eye on the prize. Watch any successful trial lawyer and you will see single-minded focus on the end result. Very little time is wasted in side battles with opposing counsel simply for the sake of the side battle.
One final note on this topic: Beware the billable hour. If the attorney is getting paid by the hour, he or she gets paid just as much money for time expended being a jerk, or spending time dealing with a jerk, as he or she does on hours spent seeking a good result. Those attorneys who are paid based upon the result rather than the hour tend to have the single-minded focus of which I speak. For them, fighting with counsel on tangential matters simply does not pay.
General Rules for Dealing with Jerks
Now that we’ve addressed your general mindset, let’s turn to some experts for the specifics. Weighing in on this subject will be two co-chairs for the Section’s Ethics and Professionalism Committee—Gregory R. Hanthorn, Atlanta, and Craig C. Martin, Chicago, along with Anne Marie Seibel, Birmingham, AL, co-chair of The Woman Advocate Committee, and Laura H. Kennedy, Phoenix, co-chair of The Young Advocates Committee.
“I have an alternating series of do’s and don’ts,” suggests Hanthorn. “First, don’t respond in kind. Bad behavior from someone else does not obligate me to behave unprofessionally.”
“Don’t rise to the bait,” agrees Seibel. “I once was complimented by a senior partner on how I handled a very agitated and very bitter witness on cross by keeping a very even tone and being professional. I think this [is] similar. They’re doing it to get a reaction out of you, and to continue to be calm, cool and collected is a way of showing that they can’t get under your skin.”
“Do consider dropping your own volume as your adversary raises his or hers,” continues Hanthorn. “It’s amazing how often having to slow down to listen leads to softer, slower speech by all involved.”
Jerks are sometimes simply performing under the (usually mistaken) belief that this behavior impresses clients. If the clients are also jerks, that may be true, but getting the jerk one-on-one, without the client, may help. You may find that you can make far more headway with an adversary if you meet him or her in private, at a neutral place, where he or she cannot play to an audience.
Jerks in Depositions
Depositions are prime opportunities for jerks to perform—at least those jerks who are oblivious to how they are coming across to judges or juries. “My sense is to follow the Golden Rule and treat them the way you would want to be treated,” says Martin. “Second, I find that a well-prepared client is much more able to deal with a difficult lawyer taking a deposition than is the lawyer defending the deposition. For example, there are some lawyers who like to show clients documents that have nothing to do with the case. It is much more effective if the client can say they have never seen that document before and hands it back to the lawyer rather than the defender making objections all over the record about how the witness has never seen the document before.”
“As far as your preparation to deal with someone acting like a jerk, you need to be more prepared than they are,” counsels Kennedy. “I would add you need to be more prepared than you think you need to be, because this puts you in a better position to either ignore them or gives you the confidence to fight back. When you are that well prepared, you can deal with them without worrying about your case, and it allows you to concentrate on substance of the case and what you need to do for your client.”
Know Thy Enemy
You’ll be doing yourself and your client a favor by finding out as much as you can about opposing counsel and how they operate. Once you know the cases they have worked on, you can call friends and colleagues to find out whether they are true professionals. Handling jerks is much easier for you and your client if you know in advance what to expect.
If you find out early that the person on the other side may not be the consummate professional, you may want to try and reach some preliminary agreements before things heat up. In The Last Thirty Days Before Trial, former member of the Section’s Trial Advisory Board Stephen D. Susman, Houston has crafted a checklist of 15 pretrial agreements that can be used at the beginning of the case to eliminate controversies and save costs on both sides.
Restraint in Writing
Let’s turn to written communication. Emails often have a deleterious effect on professional courtesy. People will say things in emails that they would never say to a person face to face. “Sometimes it is worth picking up the telephone and actually cutting through whatever the issues are,” counsels Martin. “If that doesn’t work and I am working with a large team, I have told a difficult adversary that they will have a single point of contact at our firm and it’s not going to be me. I then assign someone on our team who has the time and capacity and tenacity to deal with that person.”
“With regard to emails, don’t fire back an emotional response,” suggests Hanthorn. “Take time to confirm facts and include facts. Do assume your emails and letters will eventually become exhibits to a motion. Don’t accept what I label ‘book or record of the month emails’ where they say unless they receive a response they assume you agree. Do ask them to please not send you any more communications that imply no response is agreement.”
It’s What You Do When No One Is Watching
Character has been defined as what we do when we think that no one is watching. Always, always, always assume that a judge or a jury will eventually see how you both behaved either by way of emails, letters, transcripts, or even more devastating, a video deposition. There is no downside to taking the high road. Remember, if you wrestle with a pig, all that happens is you get muddy and the pig enjoys it.
Many jerks start fights just to see how you will respond and whether you will respond in kind. They hate silence, and they hate it when you don’t lower yourself to their level. Don’t interrupt them, let them exhaust their bile and, trust me, the judge or, better yet, the jury will have the last word on their behavior. There is nothing more satisfying than seeing the jurors’ reactions when counsel, who was downright unctuous in jury selection, shows their true colors in a videotaped deposition. Unless the judge allows editing worthy of a Hollywood movie, it is hard to edit out all the bad behavior.
Finally, I believe the single quality that separates people from other creatures is their ability to remember the past and learn from it—and their ability to see into the future for a period of more than five seconds. In the practice of law, this means that every person an attorney encounters is either a potential client or a possible referral for a potential client, even if he or she is on the other side of the case.
But when it comes to perspective, jerks tend to be myopic. “We’ve had cases where we took the deposition of a corporate officer at a decision-making level where opposing counsel was difficult to deal with,” recalls Hanthorn. “Then, within a few months after the matter was resolved, we were approached and ultimately engaged by that same corporation.”
As I tell people in court, if you want to be biblical about it, as you sow so shall you reap. If you want to be scientific about it, for every action there is an equal and opposite reaction. If you want to be colloquial, what goes around, comes around.
Resources: The Last Thirty Days Before Trial
PURPOSES OF TAKING DEPOSITIONS
Each side in a typical case has a number of discovery devices available: interrogatories, document subpoenas, requests for admission, requests for production, orders for physical and mental examination, informal (nonjudicial) investigations, and, of course, depositions. Depositions are the most effective of these for learning what a witness or party has to say about the facts of the case and the theories and approaches an opponent is entertaining. The opportunities provided by depositions—to follow up, to probe, and to challenge—and their ability to be used with any witness, not just parties, account for their effectiveness and popularity.1
Depositions can be taken for many, often overlapping, purposes. Broadly speaking, the three primary reasons to take depositions are:
1. to gather information;
2. to perpetuate testimony; and
3. to facilitate settlement.
While these purposes are not mutually exclusive, knowing the reasons or objectives for taking the deposition allows you to organize and phrase your questions in a way that maximizes your effectiveness.
2.1 Gathering Information
The most common reason for taking a deposition is to gather information. Depositions allow you to inquire into what is going on in the case, what are the facts, how the events occurred, what the other side knows, what information supports your version of events, what the weaknesses are in your own case, where the flaws exist in the opponent’s case, what other witnesses might have useful information, and so on. In addition to gathering facts, the deposition provides information about the demeanor and likely effectiveness of witnesses at trial or some other case-dispositive proceeding. In short, the deposition is being taken for the purpose of discovery. Several different reasons exist for gathering information in a case, as is discussed below.
2.1.1 Finding Out What You Don’t Know
One of the most important reasons for taking a deposition is to learn new information about the case. Typically, what your client and any friendly witnesses have to say about what happened will be known through informal fact gathering, but there will still be many blank spots in the facts of the case. Like a nineteenth century explorer deciding on a route by looking at a map of Africa and seeing the many vacant areas on the map, the deposing counsel seeks to fill in the gaps in the facts left by clients and friendly witnesses. Often the only ones who can fill in those blank spots are witnesses who won’t cooperate or the opposing party who, of course, cannot be interviewed without permission of that party’s attorney. Where was the plaintiff going before the collision with your party’s car? What happened at the meeting where your client claims the defendants fixed prices? And so on. With the African explorer, the only way of filling in the blank areas is to go and look. With litigation, the most effective method of filling in those blanks (together with discovery of documents) is taking the depositions of witnesses to find out what they have to say about the facts of the case.
2.1.2 Confirming What You Think You Know
A second purpose for taking depositions is to try to confirm what is believed to be already known. Often, based on documents and information from clients and friendly witnesses, the attorney believes she know the facts of the case. The version of the facts from clients, friendly witnesses, and their documents is not necessarily replicated by opposing parties, their friendly witnesses, and their documents. If the opposing parties and witnesses agree with your witnesses, then you have greater confidence that this will be an undisputed area at trial. Perhaps you can even reach a stipulation with the other side about these points. On the other hand, if the witnesses disagree, you will know this before trial when there is still an opportunity to marshal the proof in favor of your version of events or to adjust case theories and themes to the new or different view of the facts. The worst possible scenario is to discover for the first time at trial, when little can be done to meet the situation, that what was thought to be undisputed is actually hotly contested. Effective depositions avoid this problem.
This books is available in print and E-book formats.
Get a printed copy of The Effective Deposition here.
Get the E-book for iTunes here.
Get your Kindle Edition from Amazon here.
A NITA faculty member and professor, Cary Bricker, was recently included in the creation of a book about law teachers. After nominations, three law professors—Michael Hunter Schwartz, Gerald F. Hess, and Sophie M. Sparrow—selected a group of law teachers for inclusion, one of whom was our very own Cary Bricker. They came to her school, watched her teach, and interviewed panels of her current and former students. They then put together a book which lays out those teaching methods, most of which can be considered experiential. The product of their effort is the book What the Best Law Teachers Do. The book is modeled after Ken Bain’s What the Best College Teachers Do.
Bricker said, “I love to teach and look forward to continuing to contribute to both my school and NITA.” And that is very recognizable with this recent achievement.
Here is a brief description of the book:
“What makes a great law professor? The first study of its kind, What the Best Law Teachers Do, identifies the methods, strategies, and personal traits of professors whose students achieve exceptional learning. This pioneering book will be of interest to any instructor seeking concrete, proven techniques for helping students succeed.
“What the Best Law Teachers Do introduces readers to twenty-six professors from law schools across the United States. These instructors are renowned for their exacting standards: they set expectations high, while also making course requirements—and their belief that their students can meet them—clear from the outset. They demonstrate professional behavior and tell students to approach class as they would their future professional life: by being as prepared, polished, and gracious as possible. And they prepare themselves for class in depth, even when they have taught the course for years.
“The best law professors understand that the little things matter. They start class on time and stay afterward to answer questions. They learn their students’ names and respond promptly to emails. These instructors are all tough—but they are also committed, creative, and compassionate mentors. With its close-to-the-ground accounts of exceptional educators in action, What the Best Law Teachers Do offers insights into effective pedagogy that transcend the boundaries of legal education.”
If you are interested in purchasing the book, it retails for $29.95, but Amazon is offering it at $21.62.
With all this talk about depositions this month on NITA’s blog, The Legal Advocate, it’s easy to be inspired to brush up on nuanced skills, new techniques, and vast changes in technology for depositions. There is that changing world of technology choices, which Dick Leighton writes about. There is the separate skill bank needed to succeed in a “distance deposition,” as Larry Silver discusses. And the detail behind the admonitions – which are critical and only sound simple, as Shahrad Milanfar makes clear with his cheat sheet.
Bloggers Dick and Larry are NITA Program Directors for two of our live deposition programs – Dick in DC on July 31-August 2, with an add-on day of expert depositions on August 3. Larry leads our California Coast deposition in the LA area on July 25-27. Under the federal system’s 7-hour limit on time with a witness, the prize goes to the lawyer who puts a premium on economy of vocabulary, and who puts the work into a tightly developed plan to achieve her goals.
NITA’s deposition programs provide a lot to learn, to be reminded of, and to practice with peer reviews. In fact, we have 18 deposition programs for you through the rest of 2013.
In planning your schedule, you may wish to talk with us. Call us at (303)953-6829 or reach out to Jane Dougherty at JDougherty@nita.org. We are always thrilled to hear from you, and happy to talk through your planning questions.
Indeed, you can use the deposition program as one of the line-up of key skills needed to earn your certificate as NITA Master Advocate.
In my trial practice, before starting tricky or unusual depositions, I often referred to my chosen library of NITA reference books, which I kept close at hand. Although 30 years of trial practice provided extensive comfort in taking good depositions, I remembered to pull new ideas from the NITA reference books to refresh my imagination, suggest an approach for a difficult witness, reinforce such discipline as setting up but not springing grounds for impeachment at trial, and more. Having them at hand was like having just walked out of a NITA program faculty room, where disciplined technique and fresh ideas are carefully taught and freely exchanged.
NITA’s deposition reference books are distinguished from the typical “practice guide” for this reason – the disciplined technique and the inspired suggestions bring the faculty into your office. Our collection includes: 30(b)(6) Rules: Talking to an Organization (Malone) (new small handbook format); Deposition Rules: Essential Handbook of Who, What, When, Where, Why and How (Malone) (new small handbook); Deposition Evidence: Objections, Instructions Not To Answer, and Responses (Bocchino, Sonenshein); and related books like Exhibit Rules (Malone & Zwier), and our latest Laying Foundations and Meeting Objections (e-book, print coming late July) (Siemer). The full treatise, The Effective Deposition, 4th Edition (Malone, Hoffman, Bocchino) is not to be missed. It comes in print, ebook, and most recently the enhanced ebook featuring 30 videos of instruction by the authors and demonstrations.
As primers for your program reservation, or as on-demand opportunities to grab lunch over a video, log onto studio71. There you will find NITA’s growing collection of short, NITA-specialized quick tips for the trial lawyer. These are highly specialized, small-subject discussions on various topics. They include some of the videos from the enhanced ebook The Effective Deposition 4th, eight videos on discrete deposition topics, and a wonderful webinar by Dave Malone and Peter Hoffman on deep and important aspects of a Rule 30(b)(6) deposition.
I welcome you to NITA through these exciting options for deepening your deposition skills. However you enter our NITA world, you will find an entrée that suits your schedule now, and will broaden your access to the leading Program Directors and finest faculty. They team with you, as a colleague, to help you strengthen your skills in what we know is the never-ending growth of fine trial lawyers.
NITA is a community. It is a welcoming network. There are many places where you can contribute, and we invite you to bring others with you.
Karen M. Lockwood
Written by: Mark S. Caldwell, JD
National Institute of Trial Advocacy
Public Program Development & Resource Director
Daniel McHugh, NITA’s Director of Sales and Marketing, and I were in the NITA kitchen chatting about the blog. We went back and forth about ideas for future articles, debating what may generate the most interest. Daniel suggested a month’s worth of postings about the history of the law. My response was I did not know who would write those articles and who would care to read them. We talked about other topics and developed some interesting ideas for the summer. Just the same, the topic of legal history kept returning to me. I recalled a presentation by NITA teacher Tina Habas that quoted Clarence Darrow and his advice on jury selection. Darrow’s suggestions sounded so biased and different from current thinking. This distinction gave me the idea that a single article that pointed out the major changes in advocacy philosophy might be interesting.
I started my research by reading the article Darrow wrote for Esquire Magazine in May 1936. (You can find it here ) Here is a sample of Darrow’s advice on selecting jurors:
An Irishman is called into the box for examination. There is no reason for asking about his religion; he is Irish; that is enough. We may not agree with his religion, but it matters not, his feelings go deeper than any religion. You should be aware that he is emotional, kindly and sympathetic. If he is chosen as a juror, his imagination will place him in the dock; really, he is trying himself.
Darrow goes on to suggest: no Presbyterians – your client is most likely guilty; no Scandinavians—they are always sure to convict; no Mediterraneans—too hot-blooded and emotional; no wealthy people—too carefree with money; no poor people—too tightfisted with money; and no women. Such generalities and banal stereotyping are enough to make any of today’s trial lawyers cringe.
Initially, it appeared I was on to what could be an interesting comparison of past and present techniques and strategy decisions. As I dug deeper I found references to the fact that Darrow may actually have been writing with his tongue firmly in his cheek. Anne Reed, a trial attorney and jury consultant based in Milwaukee, Wisconsin, believes the essay is supposed to be comical and there is some wisdom in Darrow’s words – “a subtlety of observation there that we could all do better at” picking up on, she said. “But it’s marred by the slapping of the label across each observation.” [http://articles.baltimoresun.com/2009-06-15/news/0906140094_1_jury-selection-black-jurors-jury-candidates]
Even if Darrow was poking fun he included some wisdom that continues to apply when selecting a jury.
Explanations must not be too fantastic or ridiculous. It does no harm to admit the difficulty of the situation, to acknowledge that this circumstance or that seems against him. Many facts point to guilt, but in another light these facts may appear harmless.
Finding my first attempt to be flawed I decided to go back further in time to see if trial scholars of the late 19th and early 20th centuries had differing opinions than our contemporaries. I found several treatises to test my theory—only to find solid advice on a range of topics.
In his work A Treatise on American Advocacy, Central Law Journal Company (2nd Ed. 1913), Alexander H. Robbins talks about case theory at page 38:
The theory thus constructed lies at the foundation of the advocate’s case. His pleading outlines his theory; his evidence fills it in and gives it shape; and the principles of law which he cites must support the result which his theory has produced.
A party cannot make indefinite and uncertain allegations in his pleadings and then enter a trial aimlessly, permitting the evidence to carry him where it will, and finally insist on one or the other of the different phases of his case which seem to him at that time most desirable.
As we teach case analysis we, likewise, tell participants to determine the legal elements to be proved, match them with supporting and detracting facts, select the most persuasive witness to deliver the facts, and see if there are exhibits that provide additional confirmation. Woe to the participant who has no case story or who offers multiple explanations.
When we teach cross-examination we offer guidance that questions should be short—no longer than seven words—should contain a single fact, and offer no conclusions. We should save argument on the answers for closing. Compare our advice to Robbins’ on page 171:
He should get little answers to little questions, and he will then find as a rule that answers are strung together like a row of beads within the man; and if he draw gently, so as not to break the thread, they will come with the utmost ease and without causing the patient the slightest pain. In fact, till he hears the advocate sum up his evidence, he will have no idea of what he has been delivered.
We teach young trial lawyers to prepare the witness. It is our job to help them succeed as they testify. We want to put the witness at ease. Start with simple questions so the witness becomes accustomed to testifying. Then we hear, “State your name and spell it for the record” as the first words in a direct examination. Our fix is to suggest beginning the examination by asking the witness to introduce themselves to the judge and jury.
On page 24, William L. Murfree writes in his revisions to Richard Harris’ Hints on Advocacy: In Civil and Criminal Courts, William H. Stevenson Publishers (1881):
He knows, too, that every word he says will probably be disputed, if not flatly contradicted. He has never had his word disputed before perhaps but now it is very likely to be suggested that he is committing rank perjury. This is pretty nearly the state of mind of many a witness, when for the first time he enters the box to be examined. In the first place then, he is in the worst possible frame of mind to be examined—he is agitated, confused, and bewildered. Now put, to examine him, an agitated, confused and bewildered young advocate, and you have got the worst of all elements together for the production of what is wanted, namely, evidence. First of all the man is asked his name, as if he were going to say his catechism, and much confusion there is often about that, the witness feeling sometimes that he is blamed by the judge for not having a more agreeable one, or for having a name at all.
The concept of “head notes” or foundational statements that direct the witness to a specific topic often seems a foreign concept to advocacy students. We counsel participants that these statements help guide and control the witness while helping the fact finder track important concepts. Is this a new concept to advocacy? In his 1889 two volume treatise The Law of Trials in Civil and Criminal Matters (T.H. Flood and Company 1889), Seymour D. Thompson suggests using leading questions to draw a witness to a topic.
Nor is it always available error that introductory questions, designed to draw the mind of the witness to the scene or fact of the controversy, are put in such a manner as to assume the existence of a fact. Thus, in a criminal trial it was held that a witness might be asked whether “he had examined the place designated by H. as the place where he was shot,”—the object being merely to introduce further questions. [emphasis added]
Thompson goes further to explain, on page 322, what would be “leading the witness” on direct examination:
A leading question is one which may be answered by Yes or No, or which suggests the desired answer. It is a question which puts the answer into the mouth of the witness. All questions put to a witness, which assume the existence of facts material to the issue which have not been proved, are said to fall within the definition of leading questions. But a question which merely directs the attention of the witness to the fact in controversy, about which his testimony is desired, is not leading. [emphasis added]
Even communications theory is not a new concept for trial lawyers. In 1893, Professor William C. Robinson published Forensic Oratory: A Manual for Advocates (Little Brown and Company 1893).
As we teach Opening Statement we encourage participants to begin with a statement that “grabs the attention” of the fact finder and makes them want to hear more of the case story. Many considered this a major change from the traditional “civics lecture” opening where the lawyer let the jury know that what she said was not evidence—and in doing so immediately put them to sleep. Here is what Professor Robinson counsels:
Second only to the necessity of adapting the evidence to the comprehension of the jury, is that of offering the evidence in such a manner that it will move their minds and dispositions unceasingly toward the judgment which the advocate desires. In accomplishing this purpose, it should be his first endeavor to secure attention and excite good will toward his client and his cause, either by the character of the opening evidence itself, or by the witness through whom such evidence is given.
How often have you seen a direct examination go bad because the examiner is afraid of what the witness may say? We counsel participants they must trust their own witnesses until they have reason to take more control. We advise not to suggest answers. Read what Professor Robinson recommends:
The thoughtless and impetuous advocate defeats the purposes of evidence in an equally effectual manner. He is convinced that nothing can be well done unless he does it, that no witness can relate a fact unless aided by his inquiries, and that no story can be completed unless he secures the insertion of each minute particular in its proper place, whenever that place in the narration is attained. He constantly interrupts the witnesses to emphasize some special point, or to call attention to some fact which he assumes the witness has forgotten. He asks misleading questions by which the witness is perplexed, and when the answer is not prompt and pertinent rebukes him in a manner that puts to flight all his remaining recollections. If an answer is of doubtful import, instead of making a different inquiry which may produce a more complete reply, he repeats the doubtful answer to the witness and demands an explanation, —a demand with which the witness, having forgotten what he did say or having spoken without full consideration of his words, is naturally unable to comply.
Certainly, not every pronouncement in these aforementioned books is correct. Times have changed the nature of trial practice – inserting codified versions of evidence and procedural rules, giving new statutory interpretations, etc. The books also may offer advice that no longer fits in current society. For example, Seymour Thompson tells us that it is not reversible error in refusing to compel a female witness testifying upon an indelicate subject to couch her answers in indecent language, although, if so expressed, her answers would be more direct, though, not necessarily more intelligible (at page 320). Likewise, the prose once used in providing guiding fledgling lawyers is a bit stilted by today’s standards. Just the same, it is still sound.
Perhaps what this all proves is—there are few new ideas about trying cases; we simply recycle.
For those of you itching to read these historic texts you may find them at: http://www.ebooksread.com.