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Expert tips on how to win a litigation without a ego factor

published May 12, 2008

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( 8 votes, average: 4.7 out of 5)
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<<Too many lawyers think that they must be all-knowing about everything under the sun, a vestige of primal head-butting. God forbid that one ever appear to know less than his or her opposing counsel about anything — be it law-related, litigation-related, or the price of eggs in China. After 29 years I am convinced that it is part of the psychopathology that attracts people to the law.

Who hasn't attended or read a transcript for a deposition where counsel for both sides spent more time arguing over needless issues such as whether an objection was well grounded, wasting valuable time and energy and attempting to one-up each other in some peripheral battle of wits/egos?

I, on the other hand, aspire to employ the "Columbo" approach to law when dealing with opposing counsel. I don't care if my opposing counsel thinks that he or she is smarter than me. He or she probably is — particularly if he or she is younger than me, given that law school admissions have only gotten tougher over time.

In fact, I prefer to have my opposing counsel believe they are smarter than me. I really just don't care.

Why? Because no matter how smart they are, no matter how great they are or think they are as litigators/trial lawyers, I can take comfort in knowing that I know how to prepare and try cases — even very complex cases — and that rather than needing to be an all-knowing genius to compete with any opponent (and I mean any), all one need be is (1) bright and (2) a ditch digger.

So, for example, if my opposing counsel objects to a question I pose at a deposition, I listen to what he or she has said. If it is well grounded, I promptly repair my question to eliminate the objection — sometimes even thanking opposing counsel. Why not? He or she just gave me the opportunity to repair my record. Remember: I don't lay claim to being perfect and all-knowing. I just want to get it right.

Moreover, displaying the ability to promptly change a question in response to a well-made objection sends another important message to opposing counsel: "I have done this before in court." This is something that, sadly, all too many lawyers who currently call themselves litigators cannot lay claim to (but this will be the subject of a future article).

If the objection is not well grounded, then I just ignore it and ask the witness to answer the question as posed. If opposing counsel tries to bait me into an argument, I don't take the bait. If he or she persists, I may calmly ask what is the basis for the objection (again, maybe I have missed something). If I don't buy the explanation, then I politely say that I don't agree — no more, no less — and turn to the witness and ask that the question be answered. If opposing counsel persists, I then ask whether he or she is instructing the witness not to answer. This usually ends the discussion.

In short, I don't need to prove to opposing counsel I am right by arguing with them, and thus I don't argue with them, saving my arguments for when it counts — in court. I communicate my confidence in my position through my conduct, in not being baited into wasted energy and time and proceeding to the matter at hand: asking the witness the questions I need answered.

Thus, for all you young litigators out there, quit trying to convince your opposing counsel that you are perfect or that you are smarter. They most likely will be too busy appreciating how much smarter they are than you to notice. Rather, concentrate on getting better at what we all are supposed to be doing: effectively preparing cases for trial. When you do and your opposing counsel realizes that you can prepare your side's case as best as it can be, you will earn your opposing counsel's respect where it counts — in results.

About the Author

Until recently Stewart Weltman was a partner with the nationally known plaintiff's complex litigation firm Cohen, Milstein, Hausfeld & Toll, PLLC. In January 2007 Weltman formed the Weltman Law Firm.

Over the last 28 years, Weltman has been a lead and trial counsel in numerous complex litigation matters for both plaintiffs and defendants, ranging from antitrust, accounting malpractice, legal malpractice, and securities fraud to patent issues, contract actions, and consumer fraud. While much of his practice has centered on pursuing claims on behalf of individuals and classes who have been injured as the result of fraud or antitrust violations, Weltman has also successfully defended complex matters.

In addition to his antitrust experience, Weltman has acted as lead attorney or lead counsel in several securities fraud matters. He has argued before the Illinois Appellate Court and the Fifth and Federal Circuit Courts of Appeals. He has appeared before the United States Supreme Court as both counsel of record and amicus counsel.

Weltman has been an adjunct instructor at the John Marshall Law School and has served as a lecturer and panel member for numerous FDIC and RTC investigator training seminars and AICPA Litigation Support Section seminars. He has also been a lecturer for the Illinois Institute for Continuing Legal Education, and he coauthored an article for the American Bar Association's Antitrust magazine, analyzing the Chicago School's influence on the Seventh Circuit's antitrust jurisprudence as of 1989. He authored an article entitled "Contingency Litigation 101 — for Big Firms" that was published in the September 2007 ABA Litigation Section magazine.

Weltman graduated from Roosevelt University with a BA in English Literature in 1975 and from the John Marshall Law School, where he was a member of the law review, with a JD in 1978. He is admitted to practice in Illinois; the District of Columbia; the Third, Fifth, Seventh, and Federal Circuit Courts of Appeals; and the United States Supreme Court.

Please see this article to find out if litigation is right for you: Why Most Attorneys Have No Business Being Litigators: Fifteen Reasons Why You Should Not Be a Litigator

published May 12, 2008

( 8 votes, average: 4.7 out of 5)
What do you think about this article? Rate it using the stars above and let us know what you think in the comments below.