Dealing with Difficult Lawyers Creatively--Part II (Discovery)

The previous blog on dealing with difficult lawyers offered suggestions on situations outside of discovery and promised a later blog on the area where a great deal of inappropriate conduct occurs--in discovery.  This blog post focuses specifically on how to deal with difficulty lawyers in discovery. Although proposed amendments to the Federal Rules of Civil Procedure are on the way to going into effect on December 1, 2014, few will prevent the kinds of shenanigans of which I speak below.  For an explanation why I believe the proposed amendments likely will not meaningfully reduce litigation and discovery costs, see http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2472268  (even if the amendments are not fully effective in reducing the length and expense of litigation, anyone who litigates in federal court should review the paper because it summarizes the changes approved by the Rules Committee and likely to go into effect Dec. 1, 2014.  Many of the do change discovery practice, e.g. presumptively no more than 5 depositions, no more than 15 interrogatories, etc.  Although the changes may not greatly reduce time and costs, the lawyer needs to know these new rules to plan and proceed intelligently).

Try as they might, the Rules Committee cannot come up with a rule that will make lawyers behave in a civil fashion.  So, it is up to each lawyer to be prepared to deal with opposing counsel.  If she is prepared, she can avoid allowing such counsel to obstruct her search for pertinent information and prevent counsel from succeeding in distracting her focus by disruptive behavior.

Discovery is the place in which difficult counsel seem to act most offensively.  Indeed, even some Dr. Jekylls will turn into Mr. Hydes in discovery.  There’s something about the fear of “giving up” something to the other side, or not getting something, which leads lawyers to push the envelope in both written discovery and in depositions.  In written discovery, counsel will often ask for everything under the sun in discovery requests out of fear, rather than taking the approach of reasonably protecting a client and oneself from surprise at trial. Or in responding to discovery, there’s a great temptation to object in an overly aggressive manner and seek to hold back as much as possible, even if it's fair for the other side to have asked and to see the materials (or get an interrogator answer).  

Another temptation is to hide important documents in a large body of documents, a technique so common it has its own name—“a document dump.”   I encourage you to presume your opponent is acting more out of fear than out of evil motives.  You'll stay more objective that way and not be tempted to get into a personality battle.   Just resolve to be relentless.   Relentlessness in discovery means that, if you've asked for something, you're going to get it --whether you have to move to compel several times.   It means, if you believe the other side is being abusive and seeking to use unequal resources to wear your client down, you make objections and move for a protective order.   Defined in this way, relentlessness is the key to discovery and, perhaps, to being a good litigator. If you're resolved to get what you've asked for, or to keep an opponent from being abusive, then focus on that goal, rather than on the personalities involved.  Then you have an objective.  Over time, you'll gain respect for taking this approach.

Now about depositions.  In depositions, the difficult counsel often seems to be even more difficult.  Again, maintaining your composure and relying on the rules and the Court is the way to go.   Make a record regarding opposing counsel’s rude or otherwise inappropriate behavior (e.g., “Let the record reflect that Mr. Jones is standing up and yelling at my client”).   Similarly, if the opposing party is making objections that go beyond “objection to form” in a deposition, have the court report “mark for the record” the portion of the deposition.  Let it go for a few minutes.  Then say you’re calling the court to make a motion.  Bring the number of the Court (Judge's chambers if a judge is assigned to the case) and call the Court, tell the clerk (or Judge's secretary) you’re in a deposition, and ask to speak to the Judge assigned to the case, duty judge, or any judge so that you can move to order counsel to cease acting inappropriately or making speaking objections.  Courts know this goes on and will put a stop to it IF you call.  If you have to recess the deposition to file a motions seeking a protective order (because you couldn’t get a judge), state on the record before you stop the deposition that that’s why you’re suspending the deposition. Then file the motion for a protective order promptly.  The great mistake of most inexperienced lawyers (and many experienced ones) is to engage in debates with difficult counsel in depositions.  Lawyers have been known regularly to argue with each other about the propriety of questions or objections.  If you go down this path, you cannot win. You’re getting sucked into a battle that the other side wants to fight. You need to make your arguments to a judge--and judges are not present at depositions.  They can only be brought in by phoning them.   As an old saying goes, “If you get in the mud with the pig, you’ll get muddy.”  Stay out of the mud.  Take the high road. But protect your client by ensuring that opposing counsel is not interfering with the deposition by making objections that send "signals" to the witness (called speaking objections), by a lawyer who is harassing your client, or the like.  Let your gut be your guide--there are limits to appropriate behavior, and just because the parties are in a deposition, the rules of civility are not checked at the door.

In the long term, if one adopts some or all of these approaches, she ought to find a number of results: (1) she enjoys her job more because she's not accepting as a given that others can treat her disrespectfully; (2) she gains confidence by taking control of how others treat her and her client; and (3) over time others' will respect her for refusing to accept inappropriate conduct.  This is not about becoming a saint.  It's about deciding what kind of lawyer do you want to be.   If you stand up against lack of civility, and practice fair treatment of others, my bet is that you'll find that you are headed toward being a leader in the profession.