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PHILADELPHIA — Dealing with a difficult opponent is part of modern law practice. Although an aggressive approach during depositions has become routine for many lawyers, such tactics can be challenging to handle even for experienced litigators. Here are practical ways to contend with adversaries who are unreasonable, confrontational or hostile. The tone for the deposition phase of a case is often set by dealings between counsel even before the first deposition question is asked. Assume, for example, that counsel for plaintiff in a commercial dispute has filed suit in federal court in the Eastern District of Pennsylvania and serves a notice to depose the chief executive officer of the corporate defendant in counsel’s office in Philadelphia starting at 9 a.m., continuing throughout the day. Counsel for the corporate defendant responds by proposing that the deposition be in New York City, in a conference room at the corporate defendant’s headquarters, and that it continue until only 1:30 p.m., at which time the CEO must leave for a meeting on the West Coast. Claiming that the CEO knows comparatively little about the events at issue, counsel for the corporate defendant says that the deposition can be completed between 10 a.m. and 1:30 p.m., but offers to resume the deposition another time if necessary. Counsel for plaintiff has two options. First, he can reject the proposal and either wait for defendant’s counsel to yield or, more likely, move for a protective order. Or he can agree to the proposal. Regardless of what option he chooses, counsel for plaintiff communicates an important message about how discovery will be handled. If he chooses to reject the proposal, he communicates from the start his readiness to fight. Some litigators are anxious to convey that message. If he chooses the second option, counsel for plaintiff conveys a different message: that he is willing to be reasonably cooperative in the discovery process, that he is sufficiently self-assured not to reject a proposal simply because it is made by his opponent, and that he has sufficient confidence in his own abilities not to worry about yielding the home-field advantage. Taking this accommodating approach can give counsel for plaintiff an edge with the court if he should encounter problems (speaking objections and instructions not to answer) at the deposition itself. That is, it puts counsel for plaintiff in the position to state: “Your Honor, this deposition was originally noticed to take place in my office in Philadelphia, starting at 9 a.m. and continuing throughout the day. At the request of counsel for defendant, the site of the deposition was changed to New York City, from a law office to defendant’s corporate headquarters, with the starting time changed from 9 a.m. to 10 a.m. Additionally, I agreed to adjourn at 1:30 if the deposition was not concluded. I am glad to cooperate in working things out. But between 10 and 1:30, I’m entitled to a few answers.” In the actual case upon which this example is based, counsel for plaintiff accepted the other side’s proposal and completed the deposition before 1:30 p.m. Thereafter, more than 50 depositions were taken (and much paper discovery exchanged) without a single discovery motion being filed on either side. That does not mean that counsel did not represent their clients’ interests vigorously. In fact, unlike most cases, the case was tried to verdict before a federal court jury. But the lawyers had the good sense to fight about what was important and to work out everything else. It is significant that the tone of cooperation, which pervaded the discovery phase of the case, was struck in conversations between counsel before the first deposition. On the other hand, a successful plaintiffs’ medical malpractice lawyer in Philadelphia has observed that typically he would strongly resist requests to change the designated place of the deposition from his office to that of the defendant doctor, and to shorten the time allotted for the deposition (even when coupled with an offer to bring the doctor back a second time if necessary). He has found that it is of the utmost importance to communicate to the doctor that he (the plaintiff’s lawyer) is in charge and that his convenience comes first. He wants to convey to the doctor that this deposition is not going to be pleasant, and he does not want to do anything to make it less of an ordeal for the doctor. This practice is based on the theory that the more unpleasant the prospect of the case proceeding, the more amenable the doctor will be to settlement. And in many states, the consent of the doctor is required for the doctor’s insurer to settle the case. Which approach is right — accommodating your opponent or refusing to do so? The answer is that both approaches are right in different situations. It is the question of what feels right and what works for you. However, you should make advertent decisions and not just instinctively reject any proposal just because it comes from the other side. There is much wisdom in JFK’s admonition, “Civility is not a sign of weakness.” Who’s in Charge? A deposition is a kind of meeting, and even at a meeting among equals, one person, for whatever intangible reason, will usually take control. Depositions are no exception, nor should they be. The lawyer who controls the deposition has an edge. Consequently, a certain amount of jockeying for position often occurs at a deposition, particularly at its start, to determine who will seize control. If you cannot dominate the deposition, you should at least prevent your opponent from doing so. A lawyer generally avoids losing control by choosing his ground carefully and not retreating. For example, the interrogator should not demand that one of two witnesses to be deposed that morning be sequestered if he intends to abandon that demand should his opponent refuse. Similarly, the deponent’s lawyer should not instruct the deponent not to answer if he plans to withdraw the instruction, either directly or indirectly (by waffling), when the interrogator recesses the deposition to apply for a court ruling. That is not to say, however, that you should never budge from a position you have taken for fear of forfeiting control. The deponent senses who is in charge from the lawyer’s tone and manner, not from his rigid adherence to unreasonable positions, and will react accordingly. Losing Through Intimidation An attorney need not be obnoxious to assume control of a deposition. Although lawyers are sometimes successful in bullying their opponents, an experienced attorney can readily deflate a pugnacious opponent, causing the opponent to lose rather than gain control. For example, in one case, after the lawyer for the deponent ended a long diatribe questioning the interrogator’s motives in taking the deposition and reasons for delving into certain topics, the interrogator matter-of-factly inquired, “Dick, did you have a flat tire on the way into town this morning?” The interrogator should consider not only how his manner will affect the deposition testimony elicited but also how it will affect the long-term course of the litigation. For example, some personal injury defense lawyers are unremittingly nasty to plaintiffs and openly skeptical of their testimony. The idea seems to be that if plaintiffs expect more of the same in the formal setting of the courtroom, they will be more willing to accept a low settlement offer. Perhaps that approach works in some cases, but the interrogator should at the least consider a less hostile approach. In one death case in which liability was reasonably clear, at the conclusion of the deposition of the decedent’s father (the named plaintiff), counsel for defendant shook hands with the deponent and said, “I’m sorry for your loss, sir.” Counsel for plaintiff later commented that that simple gesture changed her client’s attitude about the case so that, for the first time, he was willing to think and talk about settlement. Similarly, some plaintiffs’ attorneys take a very aggressive tone in deposing the chief executive officer of a corporate defendant. Again, the idea seems to be that such an approach will make the deponent more willing to pay a higher sum to settle the case, to avoid another session of tough questioning in the courtroom. Undoubtedly, that approach succeeds in some cases. But are there not dangers in treating a strong-willed CEO discourteously? If defense counsel believes that the company has an even chance to win the case, might the CEO not direct that it be tried rather than settled? Of course, if counsel for plaintiff has no interest in settlement, such a reaction will not trouble him. That is a rare case, though. One commentator also points out that the “rabid-attack mode” is risky because most litigators “lack the skills, preparation and personal gravitas required to pull it off,” and will simply “fail spectacularly.” Mills, “Taking Chances at Depositions,” 28 Litigation 30, 31 (Fall 2001). Counsel should keep in mind the seemingly obvious proposition that there is nothing wrong with being cooperative with opposing counsel and courteous to the deponent. An incident reported a few years ago in The New York Times makes the point. Three lawyers traveled from Manhattan to Los Angeles to depose an independent businessman thought to be favorable to the other side. The deposition was to start at 4 p.m., but was delayed because other counsel were tied up in court. As time passed, the deponent became increasingly agitated. He explained that he was an observant Jew and that his father had died two weeks earlier, which meant that he recited the kaddish, the prayer for the dead, three times daily, including at sundown. Therefore, he would have to leave soon for the synagogue. The three lawyers, who were themselves Jewish, called local counsel and asked that six more Jewish men be sent to the conference room. Local counsel, later boasting that his was “a full-service law firm,” did so. With 10 Jewish men (the businessman-deponent, the three lawyers, plus six), they had a minyan, the quorum needed to hold a service. After the service in the conference room, the deposition proceeded. As the newspaper report of this incident observed, “For [the three New York lawyers], the experience was a reminder that even in the midst of litigation, adversaries can be accommodating.” N.Y. Times, Dec. 27, 1991, at B16. An experienced litigator will sometimes attempt to intimidate a more junior opponent. For example, if the veteran attorney is counsel for the deponent, he may disrupt the less-experienced interrogator’s questioning by snorting derisively at the questions, arguing about their relevance, interrupting the deposition to make telephone calls or threatening to walk out with the deponent if the deposition is not concluded in 30 minutes. The junior lawyer should not yield to such antics, but should stand his ground and proceed with questioning as planned. If he hurries and abbreviates the questioning, the quality of the deposition will suffer. It is highly improbable that counsel for the witness will follow through on a threat to leave the deposition; if he does, the court will almost certainly order him to return. Which approach is right — accommodating your opponent or refusing to do so? The answer is that both approaches are right in different situations. It is the question of what feels right and what works for you. However, you should make advertent decisions and not just instinctively reject any proposal just because it comes from the other side. There is much wisdom in JFK’s admonition, “Civility is not a sign of weakness.” Dennis Suplee and Diana Donaldson are partners in the litigation services department of the Philadelphia office of Schnader Harrison Segal & Lewis. This article was adapted from “The Deposition Handbook,” Fourth Edition, published by Aspen Law & Business. This article originally appeared in Pennsylvania Law Weekly , a Recorder affiliate based in Philadelphia.

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