Thursday, December 13, 2012
We've all been there, right? Taking or defending our first deposition right out of law school when a more seasoned opponent tries to exploit our lack of experience for his client's benefit. Well, forewarned is forearmed so all greenhorn lawyers and lawyers-to-be take heed of the following advice courtesy of the Lawyerist blog if you want to avoid the most common tactics experienced attorneys sometimes use to browbeat their inexperienced colleagues.
“The rules don’t say/require/allow that”
Really? Because that’s exactly what the rules say.
There’s a good chance, actually, a really good chance that you have read the rules more recently than whoever you are dealing with. My practice is approximately 99% litigation and I get into discovery disputes on the hour, every hour (ok, that’s a little dramatic). Let’s just say discovery disputes are a regular occurrence and they usually involve the same issues.
Before I object to responses (or respond to objections to mine) I read the applicable rule. Then I read it again. Then just to be sure, I read it again. Then I read case squibs in my civil procedure bible. Then I object (or respond).
Most young attorneys follow the same pattern, because we are young and because we are cautious. Before saying anything to big nasty opposing counsel, you want to cover your bases and make sure you’re correct. Or at least arguably correct, depending on your mood that day. So, unless opposing counsel does the same thing, you have, be definition, read the rules more recently than them.
Re-reading the rules serves two purposes. One, it will reassure you that you are, in fact, 110% correct. Two, it will allow you to shove the rule down opposing counsel’s throat when they say “well, the rules don’t require that we ______”
Or, they might say something like . . .
“That may be the rule, but that’s not how it works here in _____”
That is the oldest, lamest, and most ridiculous statement consistently offered by an attorney trying to confuse a young attorney. Don’t buy it for one second. Or if you do buy it for one second, ask them what rule supports their statement.
Opposing counsel may very well think that things should work a certain way, or regularly work a certain way. But that doesn’t mean you have to work that way.
Again, I’m not a wily old veteran. But I’ve called more than one opposing counsel out on this very rationale, and they consistently cave. Admittedly, sometimes it has involved getting a federal magistrate on the phone. Fortunately, federal magistrates also read the rules quite literally and have a low tolerance for frivolous discovery disputes.
Not only will you get what you want (hopefully), it sends a strong message to them to stop messing around. It won’t always stop them, but it should lessen it. And once you call them out a few times, they might actually start following the rules.