Late this week, I conducted a short, 90-minute deposition of a defendant doctor in a medical malpractice case. When it ended, his attorney, my adversary, rose to escort me out of his office. He smiled, shook my hand and told me, "You're a feisty little sh- ."
"Thank you," I replied, I hope I wasn't rude to you."
"Not at all," he said.
We lawyers must manage mixed messages about what makes us respected and effective. The Rules of Ethics require us to be zealous advocates for our clients, yet also civil to our opponents. Our adversarial system stresses toughness, yet in the end, most civil cases are settled. Thus, we must, by turns, get tough with our adversaries in the courtroom, yet turn around and soften in the conference room if we hope to settle.
Recently, I've heard cries that lawyers have lost their civility toward each other as compared to the past, but I disagree. To me, nothing is worse than an old codger attorney, who thinks every encounter is a battle and a psych-out game. Unfortunately, too, clients often erroneously expect their advocate to be a "barracuda." I say putting on a dog and pony show for the client's benefit may actually hurt their interests. Nothing is less productive than turning a lawsuit into a grudge match between the lawyers.
So what is effective advocacy, if histrionics won't do? For me, the keys are preparation, focus, tenacity and hopefully brains and talent. My deposition questioning of adverse witnesses can be probing, spirited, intense and insistent. But the questions are direct and without sarcasm.
The lawyer who smiled and cussed this week, had also tested me. He had tried to block and steer my deposition questioning. I stood my ground and firmly told him I would not accept his tactics. He told me afterward that he thought I had done my homework and had asked detailed and clever questions. I had made his job "interesting," he said. He also saw that I was not attempting to bait or intimidate him or his witness. Yet, my questions kept coming, and I would not stop until his client gave complete answers.
"Feisty little sh- "? I'll take it. Sometimes the best compliment is the one you get from your adversary.
