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Depositions Part 5: Dealing with Jerks: What Goes Around Comes Around

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Drummond_MarkWritten by Mark A Drummond, Litigation News Associate Editor

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

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