I.
Young lawyers, I feel your pain. Not so long ago, I stood in your shoes, bereft of experience if not confidence. On one such occasion, I attended a deposition of my client, a plaintiff in a significant lawsuit. The defendants’ lawyers— four of them— bombarded my client with questions, one after the other. As the day grew long and we tired, opposing counsel asked my client a question that I deemed irrelevant. I held up my hand, indicating to my client not to answer. This was met with an incredulous look, “On what grounds?” To which I replied, “Irrelevant.” The other lawyers chimed in unhelpfully, “That’s ridiculous!”, “You’re out of your depth!” and, “He’s a young lawyer.”
What to do? A flashback: I sat in on a deposition watching one of my mentors, a trial lawyer with more accolades than I have fingers and toes. In response to a flare-up from opposing counsel, my mentor sat quietly, narrowing his eyes, apparently deep in thought. Opposing counsel sat intently, anticipating a response, his eyes like sharpened knives. After an interminable silent minute—or was it just a few seconds?—my mentor leaned forward ever so meaningfully, and said slowly in a measured tone, “The question is refused. What is your next question?” Opposing counsel, apparently satisfied with the response, continued the deposition as if nothing had happened. Later I asked my mentor what he was thinking about while we all sat quietly waiting for his response. His reply: “Nothing.”
Back to the story. I imitated my mentor. I stroked my chin. I looked far away as if deep in thought. I silently counted the seconds while my heart beat excitedly, wanting to fight or flight. Twenty, nineteen, eighteen, seventeen… one: “The question is refused. What is your next question?” And behold! The lawyers sighed, looked at each other, and continued the deposition, fire extinguished.
II.
For some time, I lived and worked in a small town where all the lawyers knew each other and had a reputation that preceded them. I encountered a particular opposing counsel, said to be a gentleman by all accounts, at a deposition of my client. His reputation was challenged barely five minutes in, raising his voice following my client’s answer. No big deal, I thought, he’ll calm down. I said nothing in response. Then he got louder and louder. I interrupted, poker-faced, and mustered up the calm voice of Anthony Hopkins in Hannibal: substituting “Hello Clarice…” with, “For the record, defense counsel is raising his voice at my client. Let’s take a break. I need to use the bathroom.” I tapped my client’s elbow and off we went to take a break. When we returned, I looked into opposing counsel’s eyes and asked, “Are we ready?” The response was an unsmiling, “Good to go.” The day continued without incident.
This story does not end there. Reputations can be rescued, as I discovered when opposing counsel sent me an email the next day, apologizing for his conduct in the deposition. He was going through some personal things and promised me it would not happen again. I thanked him for his message, and indeed, we had lunch sometime soon after. In my experience, though, such an apology is rare, for it has never happened before or since.
III.
“Let’s settle the file. You and I know both know it’s not worth anything,” said a fellow young lawyer, an opposing counsel, supposedly chumming me up in a quick phone call to close a small file. Except I disagreed and said so, laying out my position. My client was in a small accident, I granted. He had suffered some chronic pain. But he became addicted to the pain-control regimen. He was ravaged by the drugs, lost his job, and almost his family. I had pictures of him before the accident. He looked healthy, athletic, on top of the world. In my office, he looked homeless and ragged.
“You don’t know what you’re talking about. We’re going to waste all this time in depositions. Come on, you know better,” continued opposing counsel, throwing in a snicker for good measure.
I thanked opposing counsel for the thoughts, maintained my position, and hung up. It was going to be a long haul, I thought. In the months to follow I worked up the case. I gathered evidence, attended depositions, ordered expert reports, interviewed witnesses, and prepared for trial. I communicated only by letters and emails, never arguing, only working out procedural issues. Before the trial, I received some potentially good news. The young lawyer on the other side was being replaced by a senior lawyer at the same firm. Could this mean they assessed the file and figured it was worth more? Or were they going to buckle down and scorch the earth with my remains? We set a mediation date and I drafted my memo. Then I received a call from senior counsel.
“Just one question. Is this a policy limits case?” The lawyer was implying that the defendant insurer’s exposure was extremely high, potentially up to the limits of the insurance policy. I answered honestly, and we settled the file at many times the initial settlement offer.
Litigators know this saying: Wrestle with a pig, get yourself dirty. Uncivil conduct can be cured with civil conduct. The tools we have to deal with each other need not be blunt objects: a pregnant pause; a raised eyebrow; a poker face; a half-smile; a quick break; a well-timed joke; a little bit of empathy. These are some of my favorite things.
About the Author
Ian Hu is counsel for claims prevention at LawPRO (Lawyers’ Professional Indemnity Company) in Ontario, Canada and is a member of the Law Practice Today Editorial Board. Follow Ian on Twitter @IanHuLawPRO.