Sizing Up Your Oponent for Trial: Three “Tells” Tell All

Know the enemy and know yourself; in a hundred battles, you will never be in peril. —Sun Tzu

If you’re playing a poker game and you look around the table and can’t tell who the sucker is, it’s you. —generally attributed to Paul Newman

Great trial attorneys do the groundwork for the win. Groundwork includes assessing the evidence, the witnesses, the trial judge, and the opponent. Our focus today is on the opponent.

What you are looking for is your opponent’s trial experience. Some attorneys never risk putting it on the line. This information is crucial when evaluating settlement. As a trial judge, I would sometimes double-book cases. Why? I knew in one of the cases one of the attorneys would not go to trial.

Knowing about your opponent helps you to prepare your own client for deposition. Being able to tell the client what to expect has value. Forewarned is forearmed.

Of course, you will do direct research on your opponents. You will read their background posted on their website. It is perfectly ethical to search their name on the internet to see what they may have posted. The best research is to see if you can talk to someone who has handled a case against them.

As I gained more experience trying cases, I also concluded there were “tells” that gave me insight into my opponent’s trial experience. In poker, a “tell” is a physical habit that a player may display depending on whether they have good or bad cards. I believe there are three “tells” in trial work. The previous columns listed in the Resources section below form the basis for my belief.

Deposition Admonitions

Some opponents rush through the crucial admonitions at the beginning of depositions. They combine the admonitions. They go over them too fast. They do not get the deponent to agree to each one separately.

After rushing through admonitions, and perhaps skipping some crucial ones, all they get out of the opponent is a dazed look followed by an “uh-huh.” Attorneys who have been to trial know that witnesses will look for any escape route away from an admission they made in the deposition.

“I didn’t understand the question,” “I needed a break,” or “I wasn’t feeling well that day,” are just a handful of potential escape routes. The witness may blurt these out when confronted or, more properly, use them if given the chance on redirect.

Perhaps even more important is that your care with the admonitions helps you defeat “sham fact issues” in counter-affidavits. You direct the court to your clear and separate admonition. The court sees that you told the witness that if they did not understand your question, they should let you know. Their counter-affidavit is stricken.

Working Backwards

What the trial court giveth the appellate court can taketh away. Great trial attorneys work backward from the appeal. They know what they need to support the win if there is an appeal.

There will be terms that the appellate court may use, or the jury instructions may have. Attorneys who work backward will weave these terms into their deposition practice. If an attorney asks the witness in the deposition whether using the truck was “within the scope of their employment,” I knew the attorney had read the jury instructions.

This question, of course, generates the objection that it calls for a legal conclusion. After the objection, competent counsel will follow up with a series of fact questions such as “What did your boss tell you about using that truck” or “Had you used that truck before?”

If counsel used words right out of the jury instructions, I knew that they had reviewed the last words the jury would hear before heading off to deliberate. They were working backward.

Professionalism

The legendary basketball coach John Wooden is usually credited with the observation that character is how one behaves when they think that no one is watching. Attorneys who are unprofessional lose sight of the fact that one day a judge or a jury may be watching.

These “paper lions” come into a deposition room or send an email thinking that no one who might decide their case will ever see their behavior. Great trial attorneys know that being professional is not just a requirement of the code of ethics but is also persuasive.

For attorneys who are not professional, I call this the “Jekyll and Hyde” phenomenon. In the deposition room they are snarling, sarcastic, and prone to speaking objections that are clearly made to coach the witness. However, when in front of a judge or jury, they suddenly adopt a different persona. They are courteous, reasonable, and, on occasion, sickeningly unctuous. The book of Matthew cautions against trying to serve two masters. Lincoln told us that a house divided cannot stand.

Great trial attorneys know that eventually someone with power may be viewing their words and deeds. They act accordingly. I have seen many a sheepish look from attorneys who misbehave in depositions. Sometimes this appears when we are sorting through the objections in the written transcript before trial.

Even more devastating is the video deposition. In court, with judge or jury watching, they are the paragon of professionalism. However, on video they are the opposite. Try as they might to get the court to do video editing worthy of an Oscar movie, it is simply not possible in most cases. As I have written before, you simply cannot edit out the “jerk factor.”

In one extreme case (which is worthy of a separate column), I ordered a misbehaving attorney to pay the fees of the other side for having to bring the motion for sanctions. Fortunately, his client was in court for the hearing. I advised her that I could dismiss her case for this level of misbehavior. I needed her to know that this was not the way the system of justice operates.

However, I also said I was convinced that she did nothing to contribute to the misbehavior. The transcript revealed she was truly confused by what was occurring. I believe the case was settled after that. Her attorney, to my knowledge, had never tried a case in our courthouse. I hope she found more professional counsel who knew that what goes around… tends to come around.