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Young Lawyers: Why Can't We Be Friends?

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STATE BAR OF NEVADA
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Nevada Lawyer Magazine
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“If you find yourself dealing with opposing counsel who is constantly interposing improper, speaking or coaching objections, maintain your focus and control of the deposition.”
Young Lawyers
BY JEREMY REICHENBERG, ESQ., YOUNG LAWYERS CHAIR
WHY caN’t We Be frieNds?
Our justice system is adversarial. Cross-examination is not the only crucible for testing truth in the litigation process. Our justice system demands that each party have counsel that zealously represents their interests. However, just because it is adversarial does not mean it has to be antagonistic for counsel. Here are a few tips to keep you from getting burned when opposing counsel decides to go nuclear. and only address what is necessary in order to maintain your client’s position and further your client’s interest. Remember, rarely, if ever, is a response to counsel going to further your clients’ interests. You have taken the moral high ground and likely further infuriated opposing counsel by not allowing her or him to raise your ire.
Keep Your cool
Maintain Your Focus
It’s Monday morning and you are fresh from a relaxing weekend, when you pick up a letter from opposing counsel and nearly choke on your coffee. The letter is full of name calling and “how dare yous,” because you had the audacity to file a motion to dismiss in the case. As your face flushes with anger, you rush to your desk, your mind full of invective retorts, hoping to get them all on paper before you forget them. Take a deep breath. Scorching opposing counsel’s ego with your powerful, laser-like intellect may be satisfying to you in the near term, but it will do nothing to further your client’s interests (not to mention that those carefully crafted aspersions will probably be lost on the other side anyway). Additionally, you can almost guarantee that your satisfaction will be greatly diminished when you next see those zingers on your letterhead attached as “Exhibit A” of a motion. If you need the cathartic release, sit down and draft a response with all of the sarcasm and snark you can muster. Take a moment to revel in your genius and then put it in a shred pile. Whatever you do, don’t draft it in an e-mail; one wrong click or imprudent impulse to share your opus with a friend could land your vitriol in the wrong hands. After you are cool, calm and collected re-review the letter. Decide if there is anything meritorious in it that you need to address. Keep your response short and succinct
Many firms find that depositions are good training for associates. Unfortunately, many attorneys, even seasoned ones, use that deposition, away from the watchful eyes of a judge, as the perfect place to demonstrate their command of the case by abusing a junior associate. We have all heard tales of opposing counsel acting badly, jumping up and flailing about as they interpose inappropriate objections, insult opposing counsel, coach their witnesses, etc, etc. Maintain your focus in the face of difficult counsel by disregarding personal insults and by remembering what constitutes proper objections in a deposition. If you find yourself dealing with opposing counsel who is constantly interposing improper, speaking or coaching objections, maintain your focus and control of the deposition. Do not indulge counsel by focusing on their antics and further engaging them. Look directly at the witness, address counsel and ask them to make their objection for the record. If the objection is not a proper privilege objection, look the witness in the eye and say, “Do you understand my question?” Make sure the witness understands the question and then get their answer. Opposing counsel is likely displaying such ridiculous antics because they know you are probing a sensitive part of their case and they are trying to throw you off your game. Maintain your focus and protect your record and counsel will probably back off when they realize you aren’t playing into their game.
48 Nevada Lawyer
November 2012
If opposing counsel’s behavior becomes unmanageable, don’t hesitate to make a call to the discovery commissioner or the judge in the case. Maintaining your cool and your focus does not mean taking endless abuse from opposing counsel.
Professional Courtesy is Not Weakness
Rule of Professional Conduct 3.2 provides: (a) A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client. (b) The duty stated in paragraph (a) does not preclude a lawyer from granting a reasonable request from opposing counsel for an accommodation, such as an extension of time, or from disagreeing with a client’s wishes on administrative and tactical matters, such as scheduling depositions, the number of depositions to be taken, and the frequency and use of written discovery requests. In sum, pick your battles. Successful litigation does not have to be scorchedearth. Choose the battles that must be fought. Litigation is stressful and expensive. Maintaining a good working relationship with opposing counsel helps your client by reducing fees and the emotional capital wasted on meritless fights that do not further your clients’ ultimate goals.
Maintain Your Credibility
During your career you will represent many clients and you may work with this particular opposing counsel a number of times. Resist your client’s desire to burn all bridges, fight dirty and win at all costs. Destroying your credibility by waging such a campaign will not only cost your client, but it will cost every client you will have in the future when dealing with the same opposing counsel and those he or she knows.
November 2012
Nevada Lawyer
49

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