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Litigation Journal

Summer 2024

Is Litigation War?

Dennis Raglin

Summary

  • Litigation involves zealous representation. It can be contentious and the lawyers can dislike each other.
  •  Litigation does not need to be war, but sometimes it is.
  • If you don’t want the war but find yourself in one, you will need to recalibrate and prepare a defense and counterattack if necessary.
  • To craft a defense and counterattack will cost more, but so too will not engaging.
Is Litigation War?
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In 1970, country artist Lynn Anderson sang a song called “(I Never Promised You A) Rose Garden.” One of the lines was “There’s got to be a little rain sometimes.” As litigators, we know things do not always go as planned. It is not always wine and roses. We have cases that run smoothly and we work things out with opposing counsel to get our client the best representation without going to war over it. But there indeed has to be some rain sometimes. A litigation battle can swamp the rose bed like a tsunami. Some counsel see litigation as war. Compromise, cooperation, and even courtesy are all seen as weaknesses. They see what we do as a zero-sum game. Some are quite good using this strategy.

Scorched-Earth Tactics

We have all been in multiple cases in which someone takes a position and scorches the earth, if necessary, to get what they want, whether it is to support that position or to throw bombs to undermine yours. No budging from a mediation demand, or sticking with one in the stratosphere, making the client question your abilities. Refusals to extend the discovery deadline. Not taking any calls, and responding to emails from opposing counsel sporadically, and only when necessary to further their goals. Writing aggressive letters and emails all but calling opposing counsel something less than the sharpest tool in the shed. The experiences I share here are from California state court matters. I realize that in federal court, and in some states that have adopted similar rules, trying to start a litigation battle can draw some stiff sanctions from the court.

In one case I had, an opposing counsel would greet an older lawyer at the deposition table with “You’re still alive?” She made things up on the record, such as claiming the lawyers for the defendant were belittling the deponent in the lobby and it was all “on camera.” It was bonkers. She also refused to negotiate in mediation and refused to respond to discovery until there was a motion on file. The goal, in part, was of course to try and bleed the defendant as close to dry as possible so it would just pay her ransom and be done with it. And sometimes it worked. When it did not, she scorched the earth. For her, there was no concession, no matter how small. I wish I could say I never rose to her bait. I did, but most of the time I held my tongue—and that made her angrier (which, truth be told, made me happier). If you don’t engage with a bully, oftentimes they move on to the next target. Her battle plan was to bleed my client into waving the white flag. Instead, I simply found a bench on the side of the battlefield and waited for her planned attack to burn itself out.

Another time, I was recovering from oral surgery, which had not gone according to plan (but thank you, Vicodin). I called opposing counsel—with gauze still in my mouth—and he grudgingly gave me six days for an extension on discovery due that week on a case in which there was no trial date. Trying to get that agreement was like pulling teeth (badda bing). He fought everything in the case, and when joint documents were required, the only thing that we agreed on was the caption. I dreaded working with him because I did have to go to war. To protect my client, like you, I will go to battle if no choice remains. When I aggressively went after his lying client at deposition, one lawyer took a swing at me across the table (and missed). He obviously had not read the seminal case Goose v. Gander, a case up there with Marbury v. Madison. If you are dragged into war, you don’t get to be Switzerland if you want your client to prevail and if the court provides no relief. You have to get your hands dirty, unfortunately. I had to be prepared to aggressively brief additional motions contending with his lies, his witnesses’ word salad deposition responses, and on and on. I had to be ready to take no prisoners and flood the zone with a defense. I needed to be prepared at depositions to meet a speaking objection with a detailed rejoinder so we could have a record for sanctions. (One can debate the wisdom of California still allowing speaking objections. I like them very much when I make them, but not when others do.) Having to battle is often not productive, and in most cases, it ends up giving the lawyer launching the first salvo no extra benefit. But it costs the client who has to fight back and who may not understand why it has to pay for part of the war it did not want. For some lawyers launching these attacks, that is the point.

Enough of my war stories. For our new and younger litigators who have yet to enter a litigation war zone, or perhaps have and are ready to hone those skills and get a field promotion, what works when you are on defense in such a war?

Defensive Strategies

For me, my usual initial strategy is to turn the other cheek. Ignore as much as you can. If you try to fight every little thing this type of opposing counsel does, you will burn out before you get to the battlefield of mediation or trial. The counsel who employs war strategies will have honed them over many years. You will not have the battle armor to take them on, and you might even be a new recruit in this type of fight. Meet nasty emails with neutral responses. And do not respond immediately or with language that pours more gas on the fire. When presented with discovery responses designed to make you angry and file a nasty response and motion to compel, prepare the motion without arguing or engaging in a discovery battle. Keep your powder dry. In responding to a motion in which counsel mischaracterizes your statements and the facts, try not to give in to the initial impulses we all have when that happens. Easier said than done, I know, and I’ve had my share of shooting off an email or writing a motion clouded by anger. It weakens your position in the end. If you can avoid the mud, avoid it. Lay out your position, and be prepared to calmly walk the judge through what is correct. The judge has almost certainly seen his or her share of the lawyers who are less than truthful and who thrive on gaming the system.

Part of the challenge with litigation today is email. Specifically, we drown in it. My notification window at the bottom of my screen right now is flashing like a Christmas tree light, each twinkle showing a new email coming in. Yours is likely doing the same as you read this. It is easy to be an armchair combatant by email. We all get something of a rush when sending the nasty gram. We get the last word. Until we don’t, and then the cycle can go on. We often feel we have to respond or we will look weak—the one who gets the last word sets the terms of that particular battle. Wrong. Some of the best advice I received as a young associate was don’t take the other side’s dangling bait, and wait if you can until the next day to respond. I did not understand at the time why I would “cede” the field for an entire day. The advice seems so simple, yet I find it has been critical to my work. I have to remind myself of this at least once a week when my initial reaction is to meet fire with fire. I apply it to the briefs and correspondence I write when I have the extra time—I leave overnight motions that I am in love with. The next day I sometimes edit them until they are bleeding red and wonder what I was thinking. The same for how you perceive an email or what you want to say. The brain processes while we sleep (that’s as much as I know about brains), and whatever it does, it delivers me a new perspective the next day. Often, what I thought was something I had to respond to was not that important. You take the power away from your adversary when you do not enter the battle.

Sanctions

Is it possible to get discovery sanctions? Depending on your jurisdiction, sanctions may be a tool, mostly for egregious behavior. In California, though we have strong discovery rules on the books that allow you to seek sanctions for discovery abuse that include suspending depositions to seek protective orders, they are rarely used, in my experience. Of those motions that are made, I have seen relatively few granted. And regardless of jurisdiction, how much is it going to cost your client to do all that and—like the majority of these motions, unfortunately—not really make a difference? You have to explain to the client why you thought a motion and then a hearing you lost were worth the thousands you billed. I’ve been there and none of us wants to be in that position. So, unless we are the aggressor, we often grin and bear it—we put up with the attacks and the games—until we are pushed to the wall and have no choice. If things are bad enough, however, consider sanctions as they may be worth the cost.

If it is indeed bad enough, or even a possibility, can you get a third-party referee? Again, I am not talking about federal court where you can call the cavalry in real time by dialing up the magistrate, or even the judge, and get a ruling—or sanctions—on demand. Many state courts are far more lenient, and it is time-consuming to get motions written and heard. These obstacles, combined with deadlines approaching and clogged court calendars, can make one decide against taking a run at it. In a deposition once, opposing counsel, who could not control his temper, threw a pen at our expert’s face. As we suspended the deposition and informed him the sanctions motion was coming (one that I actually think a California judge would grant), his attitude changed. His battle plan had backfired and he knew it. He pushed his army of one too far. He ended up agreeing to pay for a third-party referee to sit in on each remaining deposition. Like a babysitter. Talk about a cushy gig. And talk about costly behavior. The referee was at least $500 an hour. And we still had multiple expert depositions coming.

When courts do focus on warlike behavior, however, it can result in a severe bench slap and sanctions. In one appellate case here in California, a lawyer’s war strategy cost him dearly. The court reviewed counsel’s emails and noted that the lawyer’s “incivility was not only directed to opposing counsel; it was also directed to the Court.” Uh-oh. You know what comes next is not going to go his way. The court found that counsel was “both belittling and antagonistic; [and] at times it verged on the contemptuous.” The court then noted the absence of civility “heightens stress and debases the legal profession,” and reminded the lawyer that the California Rules of Court require the attorney oath to conclude with the following: “As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy and integrity.” The court also noted that the offending counsel’s behavior was intentional and repeated. As punishment, it applied a negative multiplier to the previously awarded $1,144,659.36, for a reduced final award of $686,795.62 in attorney fees. Ouch. That officer was busted down to private. Snoeck v. ExakTime Innovations, Inc., 96 Cal. App. 5th 908 (2023).

The issue of oaths and being officers of the court reminds us that, in addition to the courts, if things are truly egregious and beyond the pale, maybe the state bar can be of assistance. Very rarely, I know. But aside from taking our money every year and requiring us to take continuing legal education courses, the state bar does have a role in investigating and prosecuting attorneys for violating the state’s professional rules. Some behavior crosses enough lines that making a report is an option. Whether it will be acted on is, of course, more unlikely than not, but by reporting egregious behavior, you’ve perhaps added to a file you are not aware of, one that contains similar complaints from others finding that this lawyer’s tactics violate professional rules. Enough smoke and the bar may have to investigate a fire. If you did do such a letter, would it make any difference if you shared it with that lawyer? If it will only make things worse, then do not share it, and wait and see if the timed detonation works.

Litigation involves zealous representation. It can be contentious and the lawyers can dislike each other. Litigation does not need to be war, but sometimes it is. You need a plan for when you face such an opponent. There are some excellent lawyers who have built successful careers and secured significant awards for their clients by going on the offensive and making litigation a war. It works for them and their results prove it. It does not work for everyone. If you don’t want the war but find yourself in one, you will need to recalibrate and prepare a defense and counterattack if necessary, or your client will pay when your opponent encircles you and cuts off all routes and all your options. If you enter a litigation war as a pacifist, you risk having to surrender as quickly as the French army did in World War II, and your client will pay the price in the form of a bigger settlement or verdict. The client needs to be briefed up front if your case is going to be war and decide whether it is on board. It needs to understand that the case is going to be more expensive than usual and that it will pay a premium, whether it fights or not. To craft a defense and counterattack will cost more, but so too will not engaging. To prevail in such a war, the only option left may be—to borrow from Winston Churchill—“never surrender.”

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