Litigate Without Ego - The Zen of a Winning Litigator

Too many lawyers think that they must be all knowing about everything under the sun.  A vestige of primal head butting.  God forbid that one ever appear to know less than their opposing counsel - about anything - be it law related, litigation related or the price of eggs in China.  After 29 years, I am convinced that it is part of the psychopathology that attracts people to the law.

Who hasn't attended or read a deposition transcript where counsel for both sides spent more time arguing over needless issues such as whether an objection was well grounded?  - wasting valuable time and energy - attempting to one up each other in some peripheral battle of wits/egos.

I, on the other hand, aspire to employ the "Columbo" approach to law when dealing with opposing counsel.  I don't care if my opposing counsel thinks that he or she is smarter than me.  He or she probably is - particularly if they are younger than me - given that law school admissions have only gotten tougher over time. 

In fact I prefer if my opposing counsel believes they are smarter than me.  I really just don't care.

Why?  Because no matter how smart they are, no matter how great they are or think they are as a litigator/trial lawyer, I have the comfort in knowing that I know how to prepare and try cases - even very complex cases, and that rather than needing to be an all knowing genius to compete with any opponent [and I mean any] all one need be is (1) bright and (2) a ditch digger.   

So, for example, if my opposing counsel objects to a question I pose at a deposition, I listen to what they have said.  If it is well grounded, I promptly repair my question to eliminate the objection - sometimes even thanking opposing counsel.  Why not?  They just gave me the opportunity to repair my record.  Remember, I don't lay claim to being perfect and all knowing. I just want to get it right. 

Moreover, displaying the ability to promptly change a question in response to a well made objection sends another important message to opposing counsel - I have done this before in court - something that, sadly, all too many lawyers who currently call themselves litigators cannot lay claim to [but this will be the subject of a future post].

If the objection is not well grounded, then I just ignore it and ask the witness to answer the question as posed. If opposing counsel tries to bait me into an argument, I don't take the bait.  If they persist, I may calmly ask what is the basis for their objection [again, maybe I have missed something].  If  I don't buy their explanation, then I politely say "I don't agree" - no more no less- and turn to the witness and ask that the question be answered.  If opposing counsel persists, I then ask whether they are instructing the witness not to answer.  This usually ends the discussion. 

In short, I don't need to prove to them I am right by arguing with them and thus I don't argue with them - saving my arguments for when it counts - in court.  I communicate my confidence in my position through my conduct - in not being baited into wasted energy and time - and proceeding to the matter at hand - asking the witness the questions I need answered.

Thus, for all you young litigators out there, quit trying to convince your opposing counsel that you are perfect or that you are smarter.  They most likely will be too busy appreciating how smarter they are than you to notice.  Rather, concentrate on getting better at what we all are supposed to be doing - effectively preparing cases for trial.  When you do and your opposing counsel realizes that you can prepare your side's case as best as it can be, you will earn your opposing counsel's respect where it counts - in results.

Comments

[Cynthia G]

I completely agree with this approach. I also believe that not worrying about if your opposing counsel thinks you're smart helps to calm nerves in tense situations with counsel.

[Barbara]

Implicit in your "zen" approach is the belief that you are outsmarting your opponents by not engaging in juvenile fencing at depositions. Ironically, you are on the same plane as they are -- you are saying that you know more than they do.

[Stewart Weltman]

I don't think I am placing myself on the same plane, but you are right, for those lawyers who try to engage in "juvenile fencing" I am saying that I know more than them. It is a waste of time for me and for my clients. So I don't do it. The point of my post is to encourage others to do the same. So it isn't like I am trying to gain an advantage over anyone. Believe me I welcome going up against lawyers who employ the same approach as me. It is a great challenge and a professional pleasure to boot.