Outside Counsel

A. was stressing last night about a deposition she was going to be doing today. Her adversary-- I want to make sure I'm within the realm of fair comment here-- is a vicious bitch who is not above using the discovery process as a coercive tool, and A. was concerned that she would exploit the occasion of a nonparty EBT on a Friday afternoon to exactly that end. Somewhere along the way A. picked up the notion that one should never sink to the level of an unscrupulous opponent, but of course that's not true at all. What you must never do is resort to the same tactics as your unscrupulous opponent. That gets you nowhere, and is irritating to judges. The trick is to use your enemy's strengths against them. Because A. is a nice person, she should use the perception of niceness as a tool to work her own ends. There are several effective ways to do this-- even I have been able to use these tricks, and I'm not nice at all. First, remember who the most important person in the room is. The lawyers always assume that they are the most important, because they are, after all, the lawyers. Non-lawyers might guess that the most important person is the witness, since that is the person everyone is there to hear. Both of these guesses are wrong-- the most important person is the court stenographer, who is making the record that everyone else is going to depend on. If you are nice to the court reporter, you have a very powerful ally in the room. Because the reporter mostly functions in the background, lawyers often forget they are there, or treat them like furniture. Big mistake. The simple expedients of saying "Hi," introducing yourself, giving the reporter your card, asking now and then if she'd like a break -- these things will pay tremendous benefits. Remember, nobody in the room likes the lawyers. Even the clients hate their lawyers. If you can shift the balance so that one person likes you, you can do whatever you want to in that room. This works with witnesses, too. It's a mistake to think that the other lawyer's client loves him--they hardly know each other, most of the time. Try this amusing trick some time-- if your opponent is giving you a hard time about something, say: "Look, we're just wasting time." Turn to the witness then and say, "You don't want to have to come back, do you?" Do it on the record, and say it nice as pie. I guarantee that the rest of your day will go a lot more smoothly. He doesn't want to come back. You are both wasting his time-- but you are the one that cared enough to ask him, and now he likes you best.