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Raising the Bar

Ten commandments for facing down aggressive plaintiff’s counsel.

September 16, 2016 Photo

Maybe it’s caused by the world of reality television where bad behavior is seemingly rewarded with wealth and fame. Or the studies that show that people want to be entertained. For whatever reason it seems that rude and outrageous behavior in the legal profession is on the rise. We are charged as officers of the court, but that has been lost or forgotten all too frequently, especially in toxic tort litigation.

Being well prepared is the key not only to the defense of your client, but also to deflecting the unprofessional behavior of your opponent. The following “commandments” give you a road map for that preparation as well as some successful strategies that can shut down the over-the-top behavior of aggressive and hostile plaintiff’s attorneys.

1. Thou Shalt Know Your Client

From the minute you are retained to defend a client, it is incumbent upon you to know them. Your first stop is the internet because a Google search is mandatory. If you can search your client, so can your opponent. This kind of preparation means that you are ready to deflect or respond to an issue that may be following your client from other jurisdictions, which your opponent will be sure to bring up. Forewarned is forearmed.

2. Thou Shalt Know the Claimant

Find the nearest 10-year-old and ask her to show you how to use Facebook and Instagram. Under no circumstances should you request “friend” status for any claimants on Facebook, but with the amount of information available on their public pages—and their families and friends’ public pages—there is no need. In a recent case, a claimant professed to be suffering a debilitating breathing problem that curtailed his normal activities. A Google search of his activities revealed that he placed second in a Senior Olympics marathon after his diagnosis.

Also, it is important to run a background check. If you can point out to plaintiff’s counsel that you are aware that her client’s arrest for child molestation, drugs, or some other charge that points to the plaintiff’s less than stellar past, it may result in a softer side of the usually aggressive counsel to suddenly appear and result in an early dismissal of your client.

3. Thou Shalt Be Present at Discovery and Evidence Depositions

Toss the script, throw away the newspaper, and leave the knitting at home. Don’t be afraid to ask the witness what her definition of important terms are. Do not assume that her definition is the same as yours. Do not be afraid to run the issue into the ground with questions that require an answer and not a vague response. If plaintiff’s counsel tries to back you off this line of questioning, you should take it that you are getting into an area of potential testimony with which she is uncomfortable. For impeachment purposes, you must pin it down. There is nothing more painful than the smirk from plaintiff’s counsel when you have left the door open for them to walk through because you failed to lock in a witness. Also, for purposes of jurisdictions in which your client may fall under strict liability, this is your opportunity to get the plaintiff on the record regarding actions she may have taken that are irregular and unexpected.

As an example, in recent a case, the claimant testified about removing boilers from various locations intact but then would “bust them up with a sledgehammer” so others would not use them. A smart defense attorney would say that is not a foreseeable use of the boiler/furnace and push for a negligence standard. The same argument might be made if you can establish that the actions of the plaintiff were not only unforeseeable, but also were the result of some criminal activity—like theft of the materials—that might arrest the steamrolling behavior of plaintiff’s counsel.

4. Thou Shall Know Thine Enemy

An ego can be a fragile thing. One sure way to deflate an oversized ego is to be more familiar with the facts of the case and the actual plaintiffs themselves than their own attorney. True stories: if you are able to provide the court with the information on the plaintiff while their own attorney fumbles through documents trying to find the information, it may cause the court to re-evaluate who is more knowledgeable and trustworthy; providing plaintiff’s counsel the names of his own clients for inclusion on the list of witnesses to be read to the newly seated jurors can bring the ego down a notch; and, maybe the best one, when the defense counsel in his opening statement has to introduce the three other plaintiffs to the jury because plaintiffs’ counsel failed to do so in his opening statement. All of these examples should indicate to you that there is an opportunity for you to demonstrate that you are the one with the facts and the truth.

Here’s another news flash: the internet is still your friend because you can learn about the plaintiff’s counsel’s successes, failures, and trial capabilities. Another great resource is your network of co-defense counsel and your claims professional. A plaintiff’s attorney who is telling you how he is going to have his way with you and your client may have an Achilles’ heel from some other jurisdiction that you can exploit. Knowledge is a powerful thing.

5. Thou Shalt Cautiously Choose Appropriate Experts

Chose experts that fit your defense strategy, not because that is who is usually used. When interviewing an expert for a case, do not be afraid to ask whether or not they have ever had their testimony stricken, not been accepted as an expert, or failed a Daubert/Frye challenge.

Furthermore, do not allow them to be abused at the hands of the overzealous plaintiff’s counsel. When they are deposed, properly delineate the scope of the deposition and do not allow the opposing attorney to goad them into going off script.

6. Thou Shall Properly Prepare the Client’s PMK

One of the biggest sticks in a plaintiff’s attorney’s hand is the threat of a corporate deposition. In some jurisdictions, it means you must produce a corporate representative—even if you have to educate them. The best way to prepare your witness and yourself for these types of depositions is to locate other previous corporate depositions, then work with the person most knowledgeable (PMK) to prepare him to recognize the phraseology and terms that will be used.

Most importantly the witness should be prepared for the Reptile Theory-style questions. The Reptile Theory is a process used by plaintiff’s attorneys to appeal to and use a juror’s desire to identify with and punish a danger that threatens the community around them by awarding large dollar amounts to the plaintiff. This tactic can have long lasting and devastating effects. Educate your witness with the literature on this technique and how to respond to minimize the effects of those questions.

7. Thou Shalt Not Allow Witness Abuse at Deposition

Never allow your witness to be treated rudely by any plaintiff’s counsel. Confer with them regarding the strategy that you will employ if inappropriate behavior occurs. I recommend politely and calmly putting on the record that you are taking a break in order to allow the attorney (who has decided to leave professionalism and common courtesy at the door when they came into the deposition) the time they need to regain their composure before resuming the deposition. The record will reflect that you and your witness did not engage in unprofessional behavior, it will allow your witness to feel protected, and if it has to go before the judge, you have a defensible position.

8. Thou Shalt Protect Oneself From Abuse or Insults

The protective measures taken to protect your witnesses also should apply to yourself. Many of us have been in the position of having witnesses or plaintiff’s attorneys attempt to speak to them in a condescending manner, speak over them as though they were not speaking, or just raise their voices in a threatening manner. This is behavior that should not be tolerated. For purposes of the record, especially if it is a stenographic record and not being videotaped, it is good practice to directly address the offending party, whether it be the witness or opposing counsel, and ask politely, but firmly, if they need to take a minute to collect themselves because the tone of voice is inappropriate.

9. Thou Shall Confer with your Client and Claims Professional 

Your biggest resource and ally is your claims professional. There may be litigation strategies unfolding on a national level that require you to report any unpleasant exchanges with a plaintiff’s counsel immediately. Additionally, you may have to adjust your defense strategy accordingly for the greater good.

10. Thou Shall Remember Your Place

There is no doubt that the unprofessional behavior of the plaintiffs’ bar has been increasing, but that is no excuse for the members of the defense bar to forget our roles as officers of the court and the face of our profession to everyone we encounter. What we do is neither fodder for a reality television show nor for entertainment. It is a serious business with serious consequences for our clients. All the more reason to insist that everyone behave in a respectful, professional manner.

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About The Authors
Kay Baxter

Kay Baxter is partner at CLM Member Firm Cosmich Simmons & Brown PLLC. She can be reached at  kay@cs-law.com

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