The 5 Greatest Gaffes To Give Your Opposing Counsel

Posted on 11-23-2015 by
Tags: Top Stories

The article below has been republished in full courtesy of Law360, written by Ed Beeson

There may be no greater gift you can give opposing counsel than the gaffe you made in open court. From sloppy preparation to near-slanderous presentations, lawyers can open themselves to counterattacks that undermine their credibility and make their opponents look better as a result. Here, Law360 looks at five missteps your opposing counsel will use to score points against you.

Winging It
The cliche is there is no substitute for preparation. Not even years of experience can fill in, as attorneys often find out when they are thrust before an ornery judge for the first time or hit with questions they don't know how to answer.

Mark Rifkin, a partner at Wolf Haldenstein Adler Freeman & Herz LLP, recalls appearing in a Michigan federal court before a judge with a reputation for impatience. Knowing this, his legal team prepared a list of answers to questions expected from the judge. When some of those questions came up, Rifkin was able to respond quickly and to the point.

Yet it was clear the lawyer on the side either didn’t prepare in the same manner, or know the judge's reputation, according to Rifkin. When a simple question was posed to him, the lawyer hesitated as he gathered his thoughts.

"The judge waited a second or two before saying, 'I see you have no answer for that,' and moved on," Rifkin said. "The attorney on the other side never regained his balance.”

An Uncontrolled Reveal
If the art of litigating is to know when to play the cards in your hand, all too often lawyers get swept up into the desire show their ace as soon as they can.

Scott R. Wilson, a partner at Boies Schiller & Flexner LLP, says the single-most common mistake of lawyers is to not exercise patience when they get their hands on what feels like a juicy piece of evidence. The temptation may be to run to file a fresh motion with the goods, or raise it immediately during a cross-examination.

But that attack could fall flat if not thought through and if opposing counsel finds a way to deflate it. The attack could also backfire. The power serve you thought you delivered to the other side could end up getting spiked back at you.

These possibilities show it's critical to strategize before you show your hand.

"You have to think about using the tools you have for maximum impact," Wilson said.

Another way in which attorneys set themselves up to be dismantled by the other side is by overpromising during opening arguments at trial and spelling out exactly what they plan to prove, says Truc Do, a partner at Jones Day.

"It gives your opponent a clear blueprint of what you're going to do, and allows them to preempt," she said.

A former prosecutor in Los Angeles, Do says this happened during the opening statements in the murder trial of Phil Spector, the acclaimed music producer who was eventually convicted of killing the actress Lana Clarkson. Spector's attorney had told the jury the defense would prove 10 specific things at trial, she said.

But when the trial finally wrapped some five months later, it came time for the prosecution to revisit those earlier pledges. Do says the opener allowed her team to show exactly how the defense had fallen short in its efforts. During the rebuttals of closing remarks, Do's co-counsel put an easel before the jury that listed the points the defense said it would prove. He then went one-by-one down the list, arguing how it had failed on this or that point. And as he did so, he stepped to the easel and crossed out a point each time. 

"It gives you such a clear target to shoot at," Do said.

Letting Clients' Bad Blood Infect Your Work
During the long haul of representing clients, it's easy to develop empathy for their plights and see things through their eyes. But a good lawyer also needs to know when to step back from unswerving champion and step in as sage counselor, notes Andrew DeVooght of Loeb & Loeb LLP.

That's especially the case in disputes where bad blood has boiled up on either side. An impassioned litigator may be tempted to go full bore on behalf of their clients, taking a hard-nosed stance in negotiations or advancing arguments before judges that give a taste of the venom their clients feel.

It may feel good to act tough in front of a client, but a cool-headed counselor would know when a more measured approach would better serve their client's business interests. Otherwise, they could miss a chance at a meaningful settlement or, worse, bring a suit that's not as strong as it could have been.

"The ultimate blunder is you could have a lawsuit that shouldn’t have been filed," DeVooght said.

During litigation, a fired-up attorney may juice up an argument in hopes that it lands a heavy blow against their opponent, but a dispassionate judge might find it falls flat on its face. That in turn could color how the judge reads the rest of the dispute, according to DeVooght. Or else, a good trial attorney will zero in on where opposing counsel have overreached and use that to knock down their credibility.

"You can be a zealous advocate, but you have to pick when," he said.

Not Vetting Your Expert Witness
At trial time, you want to bring out the firepower that sways the judge and jury to your side, and expert witnesses are one way to do that. But it's important not to be too dazzled by your experts' credentials and willingness to say something that supports your argument. There could be something floating in their pasts that could do more damage than the good they can do on the stand.

Do says she is surprised at how often opposing counsel don’t thoroughly vet their experts before putting them on the witness stand. As a prosecutor, she said one of the first things she did when she received the name of a defense expert was to go to Google, the library and anywhere else she could research the person's work.

That sleuthing paid dividends. During the Phil Spector murder trial, the defense called an expert on suicide to back up its claims that Clarkson had shot herself to death. In advance of that, Do studied the expert's body of research back to the 1970s. It turned out that much of his literature was helpful to the government's case, she said. 

"I had gems that I had pulled from various things he had written that completely contradicted things he was telling the jury," Do said. On cross-examination, she peppered the expert about these contradictory findings. At first, the expert claimed not to remember the findings, or said she had them wrong. That led Do to reach for the binders she assembled of his research. She read out loud the passages he said he couldn't recall, and forced him to concede. 

In another trial, against a man accused of attempted murder after he stabbed a woman multiple times while on the drug ecstasy, Do was confronted with another expert. A psychologist, he was to testify in support of the defense argument that a person, in the middle of a drug-induced haze, couldn't be found to have any criminal intent.

In doing research on his background, Do discovered a book he wrote in which he detailed the effects of drugs by taking them himself.

"He would record and describe these crazy acid trips he was on," she said.

When it came time for his cross-examination, Do started by asking the expert if he remembered the 1980s TV commercial that likened the effects of drugs on a person's brain to an egg sizzling on a hot pan. The expert said yes. Do followed up by having the expert confirm what he wrote in his book about taking drugs.

"All I could do was undermine his credibility," she said, "because there wasn’t a chance of going toe-to-toe with him on pharmacology."

Not Playing Well in the Sandbox
While no one wants to make the mistakes that the other side will seize upon, no one should also want to be the one seizing on those mistakes all the time.

"It's neither attractive nor productive to try to seize on every foot fault or misstatement or other minor error by opposing counsel," Wilson said.

Trying to score points at any possible moment can do more damage than good, according to Wilson. It can kill chances at deals and give you a sour reputation if you're quick to fire off a letter to the judge after every time you and opposing counsel meet.

"Lawyers should try to exercise professional courtesy. You can't cry wolf constantly," Wilson said. "If opposing counsel feels that at every moment you’re looking to seize on their statements, you could damage your ability to have important discussions."

The above article has been republished in full and is courtesy of Law360. For the latest breaking news and analysis, visit Law360 today.


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