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William F. Horsley
William F. Horsley, P.A.
www.horsleylawfirm.com
Perhaps the best advice I have received in my twenty-five years of practice came early in my career. My employer, and first mentor, Hugh Griffin, told me: "Never let the other guy know that you know he's a son of a bitch. If you know he's an SOB, you have the advantage. Once he's aware that you know, you've lost the advantage."
Of course, twenty-five years ago SOBs in the legal profession were much more of a rarity than they are today. It was always a surprise to encounter a lawyer who consistently played "dirty." Most lawyers, even those who were tenacious in their representation of their clients, were professional in their dealings with each other and, for the most part, likeable. Things seem to have changed.
I confess that I don't know why things have changed so much. Part of it may have to do with the overall decline in civility in society. Another cause may be the rise of the cult of the "hardball litigator." Perhaps we just have people in the profession today who ought to be doing something else. At any rate, encounters with jerks seems to be on the upswing, and, unfortunately, "jerkdom" is not limited to any one area of practice. Jerks sit on both sides of the courtroom and even on the bench.
Even lawyers who are ordinarily easy to get along with, or even nice, may on occasion qualify as jerks. It is even more surprising, disappointing, and frustrating when an ordinarily civil and professional adversary turns ugly.
For purposes of this paper, I have divided the Kingdom of Jerkdom, like Caesar's Gaul, into three parts (and I'm not even going to address the subject of adjusters):
- Consistent Jerks: These are lawyers who can always be depended upon to be difficult to get along with. When you learn that this lawyer is on the other side of your case, you immediately get a headache and wish you'd gotten that MBA. These lawyers lie. They are rude (unless they need something from you). They are abusive of your client during depositions. They are the lawyers who, during law school, hid the books from other students. They tend to be arrogant and supercilious
- Occasional Jerks: For the most part, we wouldn't think of these lawyers as jerks. Usually Dr. Jekyll's, they turn into Mr. Hydes when (a) they are unprepared, (b) they are representing a well-paying jerk who expects his/her lawyer to be mean and nasty, too, or (c) they are desperate.
- • Judges: Well, we all know what a judge is. In my experience, most judges are not jerks. However, I have observed notable deviations from the norm and have included judges as a separate category because dealing with them requires a much different approach.
Remember that a jerk doesn't have to seem mean in order to qualify for the Hall of Shame. Many of the most egregious examples of jerkdom in my experience have been committed by lawyers who, outwardly, gave every evidence of cooperation and goodwill. It was only later that I discovered, usually quite by accident, their duplicity. Typical examples include tampering with or withholding evidence, "speaking" objections designed to give a witness a hint as to the preferred answer to a question, last second filing of dozens of pre-trial motions designed to keep you from preparing for trial, and the list goes on.
Also remember that the other lawyer is not a jerk just because he/she has taken full advantage of a legal defense, even though we are frustrated by it.
I have developed the following rules for dealing with jerks (and hopefully for preventing my becoming one).
1. Be professional at all times. Don't wallow in the gutter with a rat. It is his home turf and he will bite anything, whereas you probably won't. Zealous representation does not require you to abandon professionalism.
2. Be nice and polite. I've always heard that you can catch more flies with honey than with vinegar. Responding in kind tends to justify the original misfeasance and will often result in an onslaught of "gamesmanship".
3. Know with whom you are dealing. John Kennedy once said, "Forgive your enemies, but remember their names." If your opponent is a known jerk, prepare accordingly.
4. Be sociable. This is a different dog than politeness, though it hunts in the same pack. Try to create a social situation. If you've had a couple of drinks with the other lawyer, and perhaps discovered that you have something in common, it will be much more difficult next time for him/her to be nasty.
5. Be prepared. If you know the facts and the law of your case well, you have a great advantage. If your client and/or witnesses are well prepared for testimony, the jerk's tactics will not be successful.
6. Be efficient. Don't waste the time of your opponent or of the Court. This often leads to frustration which can induce an otherwise "nice guy" into jerk-like action.
7. Be understanding. Know the difference between zealous, effective advocacy and misbehavior. A lawyer isn't a jerk just because he/she has raised a successful defense to your position in the case, or has filed a motion you don't like.
8. Be fair. Don't give in to the temptation to take an unfair advantage. You will certainly come to regret it.
9. Be resolute. Don't hesitate to take the necessary corrective action. This may involve filing a motion for sanctions. Even if your motion is ultimately denied, it may never-theless keep your unsavory opponent from pulling any more dirty tricks.
10. Be cooperative. If your opponent needs a little extra time to answer those interrogatories, give it to him/her unless to do so puts your case in some jeopardy. In that event, don't just refuse out of hand, see if there isn't some mutually agreeable way to resolve the problem. Above all, don't refuse to grant that which your opponent can get without your consent (even though it may involve some trouble).
Let's look at some examples.
Case No. 1: The deposition of the defendant is just beginning. As usual in civil cases, there is a stipulation on record that objections are reserved except as to the form of the question. As the questioning progresses, the lawyer for the defendant not only begins objecting to what seems to be routine questioning, but is doing so in a way which suggests to the witness the answer to be given to the question. When the questions get tougher, the lawyer begins instructing the witness not to answer.
This is not good advocacy. North Carolina Rules of Civil Procedure do not deal specifically with this problem, except to provide that, absent a stipulation to the contrary, objections shall be placed on the record and the witness shall answer the question subject to a later ruling by the Court on the objection. In Federal Court, case law offers some guidance to the proper conduct of a deposition (see Clifton v. Hall). How you respond to this problem depends, in my view, on whether the jerk on the other side is a consistent jerk, or merely an occasional jerk.
If he/she is the latter, the better course of valor may be to simply proceed with the deposition, taking some corrective measures as you go along. For example, if the other lawyer has objected with a hint of how he/she wishes the client to answer, you might restate the question, this time prefacing it with, "Now that your lawyer has suggested a response, can you answer the question?"
Remember that while winning is important, a lawsuit remains a search for the truth and it may well be that the opponent is not inducing dishonesty in his/her client, but is rather trying to deal with an inarticulate witness, or perhaps a poorly prepared one.
In the case of the opponent who has a known propensity for such tactics in depositions, try videotaping the deposition. Sarcasm is rarely reflected in a printed transcript, but shows up wonderfully on tape. Too, the presence of the camera often reduces the level of misconduct.
Case No. 2. Old Holy Grail Mutual has denied your client's claim, contending that the impact of the collision was not severe enough to cause injury. Suit has now been filed. Based on your client's description of the damage to the defendant's vehicle and the estimate of damage on the accident report, you suspect that there is evidence of a more severe impact than indicated merely by the damage to your client's pick up truck. Accordingly, you have requested production of a copy of the estimates and invoice for repairs to the defendant's vehicle and have received the following response from the lawyer hired by Old Holy Grail: "This document is not presently within the possession of defendant's lawyer."
Obviously, such a response does not comply with the Rules of Civil Procedure. Old Holy Grail paid for the repairs to both vehicles. You know the insurance company has the repair invoice and the estimates. You suspect the defense lawyer is technically telling the truth, but may have been less than diligent in securing the needed document. Again, how you choose to deal with this problem may depend on whether your opponent is a habitual jerk or if this is an isolated incident.
Certainly, before doing anything else, you should at least write a polite letter asking when the carrier will make the document available. If you don't get a satisfactory reply, take the defendant's deposition. At the deposition, ask the following:
Q. Describe the damage done to your car in the wreck.
Q. Was your car repaired?
Q. Where was your car repaired?
Q. How long did it take to get your car repaired?
Q. What was the cost of repairing your car?
Q. Did anyone prepare a written estimate of the cost of repairs?
Q. Do you have a copy of this estimate?
Q. Who prepared this estimate?
Q. Who paid for the repairs to your car?
Q. Before your deposition today, has anyone asked you for a copy of the repair estimate or invoice?
If things work out as expected, you'll get a copy of the estimate and the severity of impact may not be a factor in your case anymore. If the defense persists, depose the garageman who did the repairs. Have him describe in gory detail all the work he had to do to repair the car, what he was paid and by whom. It is also sometimes interesting to learn that his estimate was higher than that prepared by the Old Holy Grail adjuster, but that he agreed to do the work for less because of some guarantee from the company of future work.
Do you want more fun? Depose the adjuster. Ask if a thorough investigation wouldn't involve taking photographs of both cars. Ask if his file contains a copy of the estimate. Ask if he prepared the estimate and, if he did, the amount of his estimate. You will probably get some objections along the way on the grounds that the estimate was prepared in anticipation of trial, but remember - we're talking here about the damage to the insured's vehicle, which is not directly in issue in your case. These are things which must be done in the ordinary and routine part of the carrier's business. Were they anticipating litigation from their own insured?
You get the idea.
Understand that in this scenario, the defense lawyer may not have played a direct role in stonewalling your request, but he/she is under an obligation to make a diligent inquiry in an effort to comply with your request.
After all this, if they persist in pursuing a spurious defense of minor impact, file a motion for sanctions if you are dealing with a known jerk.
Case No. 3. Judge Amos P. Highpockets has been on the Superior Court bench for thirty years. He enjoys a pretty good reputation as a judge and considers himself to be a courtly Southern gentleman of the "old school." Unfortunately, all the students in the "old school" were white males. You are not. You are female. This is your first trial before Judge Highpockets and within moments of seating prospective jurors, he has referred to you as "dear," "little lady," and "an attractive young lady." He refers to your opponent as "Mr. Pettifogger."
I am probably uniquely unqualified to give advice in this situation, but since I have never let that interfere with a willingness to have and express an opinion in the past, I will give it a try.
I think you have to say something to the Judge. He probably thinks he is being polite and he may resent any suggestion that his comments may has an adverse effect with the jury. However, it needs to be stopped. If he persists, it may be necessary to enlist the aid of another lawyer, perhaps one of Judge Highpockets' approximate age, to speak with the judge.
What do you do if Judge Highpockets is more than just an old codger who doesn't have a clue? Maybe he's an old goat who doesn't have a clue. Untoward sexual advances, or even innuendo, have no place in society, especially in situations where a client's rights may be effected. The Judicial Standards Commission should be notified.
Case No. 4. "Do you still beat your wife?" You represent the defendant, Jaime Innocente, a small business man, in a criminal prosecution. You believe your client's protestations of innocence and, having double checked his claim that he has no prior criminal record, you have decided to put him on the stand to tell the jury he didn't do it. The DA, sensing the hoped for conviction slipping away, begins to cross examine Innocente by asking about prior convictions. As he does so, he pulls from his briefcase a 40-page computer printout and begins asking Innocente if he denies being convicted of specific crimes.
We all know it really doesn't matter that the defendant denies each and every conviction. The seed is being planted with the jury that the DA has the record and that he has a long list of convictions.
Tactics like this are part of a long list of items comprising misconduct. We all know that the Court, if requested, will give a limiting instruction or will instruct the jury to disregard, but that toothpaste, once out of the tube, cannot be put back in.
If the opponent has a known propensity for such tactics, they should be cataloged and made the subject of an appropriate Motion in Limine to prevent the opponent from exercising such tactics without first obtaining the permission of the Court, out of the presence of the jury. The motion should include some of the opponent's history, if known. The Court may not grant the motion, but the groundwork is laid for mistrial, appeal, or possible sanctions at a later time.
Sometimes it becomes necessary to fight fire with fire in these cases. You simply cannot be satisfied with an objection, even if it is granted. You must find a way to let the jury know what has happened. Your object is not to "score points" off the other guy, but to win the hearts and minds of the jurors in the case. One possible tactic (to be used only in extreme cases) is to let the cross examination proceed. Then, on re-direct, confront the opponent by asking for a copy of the document to which he referred during the cross examination. Force the issue with the Court. File all appropriate grievances.
On the topic of sanctions and grievances, it has been my experience that civil plaintiffs and criminal defense lawyers rarely get full relief from the transgressions of their adversaries. I don't know why this is. Frequently, my motions to compel discovery are dealt with in "split the baby" fashion by the Courts, resulting in half-injustice.
Case No. 5. Larson E. Pettifogger is an experienced personal injury defense lawyer who does all the work for Old Holy Grail Mutual. You have a fairly complicated case in which Pettifogger is the defense lawyer. He has been, so far, easy to deal with. Because you have impending major trials, you have discussed with Pettifogger the necessity that no depositions be scheduled during the next month. He has agreed. You begin the first trial. The night before jury arguments you check your mail and find that Pettifogger has filed a motion to dismiss pursuant to Rule 12(b)(6), failure to state a claim for relief. The hearing is set for the Monday on which your second trial is to begin, a fact known to Pettifogger. As soon as your first trial is concluded, you review your file and determine that the best defense against the motion is to attach affidavits to your response, converting the motion into one for summary judgment. Your response is timely served on Pettifogger. Meanwhile, your second trial is continued for unrelated reasons, so you are now able to appear as scheduled to defend Pettifogger's motion. He seems surprised to see you and then tells the Court that, since the motion is now one for summary judgment, he needs additional time to secure counter affidavits and requests a continuance, which is granted.
When you confront Pettifogger about his scheduling this motion at a time he knew to be a conflict, he simply says that his client insisted that he do it. He then invites you to select a time for the hearing.
What has clearly happened here is that Pettifogger, knowing you are vulnerable because of the trial schedule, has tried to slip one by. He technically has done nothing wrong. However, what he has done is a breach of civility. The better practice is always to at least make an effort to schedule hearings at mutually convenient times, recognizing that it won't always be possible to do so. Here, there was no prior consultation about scheduling, which is especially bad when the opponent is aware of your scheduling problems. The last refuge of the scoundrel in this type of situation is the explanation that "my client made me do it." Compounding the felony in this case is that when the motion came on for hearing, Pettifogger wasn't prepared.
There isn't much you can do to anticipate something like this. If the 12(b)(6) motion was part of the answer, the tendency too often is to think of it as an automatic defense. You might consider addressing this defense early on. When you get an answer containing this defense, write the defense lawyer and ask point blank if he/she is serious about it. If the answer is negative, ask him/her to withdraw the defense. If he/she won't, or doesn't satisfactorily respond, you have the right to request a hearing on the motion.
CONCLUSION
In the long run, there isn't much you or anyone can do to prevent a natural born a** h*** from being himself. However, you can minimize the effects of it by following my ten commandments and at all times being prepared and professional. In the last analysis, these people are nothing more than bullies, and we all learned in the third grade how to deal with bullies. Mark the advice of Hugh Griffin and John Kennedy, and don't let the bastards grind you down.
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