Friends & Enemies, I am now semi-retired and letter-by-letter removing the "semi" from the designation. I was thinking this morning about one subtle art of lawyering that I have seen neglected, and no doubt have neglected my own self, over almost forty years of practice. It is this: one must needs be careful what one says to opposing counsel, how one says it, the timing, and the location of the saying, and how one presents in the communication. Not because you're going to get pissed and curse and get chastened by the judge and get a bar complaint against you. No, not because of that. This is a subtle art and those are not subtle acts. Rather, because unless you are on guard you are going to say or do something that will give your opponent insight into your handling of the case. This is especially true, I emphasize, when you and opposing counsel do not know each other. I'm writing generally, I know, and so I will inform the generalities with specifics.
-A few months ago I went to hearing in a stupid civil matter. I had never handled this kind of thing before, didn't know the judge, didn't know plaintiff's counsel, who was a fine young attorney. I thought the first day of hearing had gone well for the home team, but what did I know? When I returned to my office I had an email from opposing counsel proposing settlement! Now I knew the hearing had gone well. My opponent had sent the email within an hour of the hearing's recess. We weren't to resume for another month. Timing: He should not have sent the email right after. What's the rush? It gave the appearance, and the appearance matched the reality in this instance, of something close to panic. If he had waited a week. The email was also specific about the terms of settlement. Like, in a criminal case, not just, "Hey, Mr. Ranck, let's talk," but "two years probation, a withhold, community service hours," blah-blah-blah. Clearly, he had gotten instruction from his supervisors on what to offer. I talked it over with my client and I decided not to even respond to the email.
-Many years ago and again within the last three or four years, the following occurred. In the remote case I was a prosecutor sitting in on a deposition by a defense attorney who I knew well; in the recent case, I was the defense attorney taking depositions. Although I had worked with the prosecutor well I had never heard of him previous to my retention in the case. Both were murder cases. Both depositions were conducted in opposing counsel's office. E's and F's, do not do that. In both depositions I saw stuff, tons of boxes, some labeled "Dr. Smith," "Dr. Jones," that tipped me off in the remote case that defense counsel was exploring earnestly a mental status defense, blow-up trial exhibits in the recent case--all of which I had no right to see when I saw them. Foot fault. Unforced error. Hold your depositions in a conference room. Don't bring your entire goddamned file. Bring what you need for the depo.
-Be careful how you act and react in deposition. Unrelated case: I'm deposing a witness in a civil matter in opposing counsel's office. Opposing counsel is relaxed, sitting back in a swivel chair as I ask the questions and his witness answers. All of a sudden the witness answers a question and opposing counsel bolts upright and begins feverishly writing on his yellow legal pad. In real time I didn't know what the hell was so important about what the witness had just said. I noted counsel's behavior and looked into it later and learned. Why do you take notes at all in a deposition? Isn't that what the court reporter is there for? Okay, you're going to take notes because in training someone told you to take notes. Fine. I always waited thirty seconds or a minute or so and then just scribbled carelessly on my legal pad. I knew that opposing counsel was watching me but he didn't know I was watching him watch me. I never reacted like a shot rang out from the grassy knoll and the president's head slumped onto Mrs. Kennedy. Be guarded in your body language. Never let 'em see you sweat.
That's all for now. See ya in four more years. Maybe.
