John P. Blumberg
John P. Blumberg Avoiding discovery wars
Every hour wasted in discovery wars is an hour that could have been better spent on more productive activities. Using the strategy of Aikido, an attorney can beat the opposition by playing the game with a different approach
“I want considerate people to listen to the voice of Aikido; it is not for correcting others. It is for correcting your own mind.”
Morihei Veshiba 1883-1969, Founder of Aikido
Before the enactment of the
Discovery Act, trials were filled with sur- prise, bombshells, cunning and sometimes treachery. And now, a half-century later, if you are not successful in getting the dis- covery you need, trials can be filled with surprise, bombshells, cunning and some- times treachery. This article is not about what threats and overpowering strategy you can use to vanquish the intransigence of the opposition. What this article is about is how to adopt an attitude that will help you to get what you need.
When you wrestle with a pig in the mud, you’ll both get dirty, but only the pig will like it The defense gets paid to mess with
us; we don’t get paid extra for the war. If we allow ourselves to be drawn into con- flict with opposing counsel, we are playing their game and not our own. Exchanges of angry letters? They win, we lose. Motions to compel? They win, we lose. Their opposition to our motion? They win, we lose. Our reply to opposition? They win, we lose. The judge grants part of what we want and awards no sanctions or a fraction of what we deserve. They win, we lose. Every hour wasted in discov- ery wars is an hour that could have been better spent on more productive activities.
In the battle between the irresistible force and the immovable object, nobody wins In litigation, for every lawyer who
fancies that he is an irresistible force, there is an opposing lawyer who is out to
74— The Advocate Magazine APRIL 2011
prove that she is an immovable object. If you approach the conflict thinking that you will overwhelm the other side, you will often be met with equal opposing force. Think outside the box. Change the dynamic. Find a way to get what you need by other means.
An Aikido martial arts approach We are the managers of conflict. We
are asked to assert rights and defend inter- ests. It is fantasy to believe that we can over- come an immovable object with irresistible force. The martial art of Aikido recognizes this truth by maximizing power without head-to-head force. The word “Aikido” is actually three words in Japanese, “ai,” “ki,” and “do.” Roughly translated, “ai” means “harmony” or “agreement”; “ki” means “energy”; and “do” means “path.” Together, Aikido describes the confluence of energy and harmony. Stated another way, it is the antithesis of force vs. force; it is a way to redirect force aimed against you to your advantage.
Head-to-head force Head-to-head force (known in Aikido
as “the line of force”) occurs when two people are engaged in direct disagree- ment with each using the same method. Picture this scenario: Two nine-year-old boys are having an argument: “Oh yeah?” “Yeah!” “Says who?” “Says me!” “Whaddya going to do about it?” “I’m taking my ball and going home!” “Go ahead, crybaby!” “Who you calling a crybaby?” “You!” “Wanna fight?” Now, fast forward 20 years, and these
boys are now lawyers in a deposition: “Objection, the question calls for speculation.” “No it doesn’t!”
“Yes, it does.” She was there when it happened, so I insist that she answer it.” “Well, I instruct her not to answer.” “You can’t do that!” “Says who?” “Says me!” “Well, I’m terminating this deposition and we’ll see what the judge says.” In the above example, each partici-
pant fancied himself either an irresistible force or an immovable object. Just as the conflict between the young boys was not going to be resolved, neither was the con- flict between the two lawyers in deposi- tion. No matter how strong you are as an advocate (i.e., the irresistible force), you will not move a competent adversary (the immovable object.)
Get off the line of force An argument can occur only when
two people are participating. Using the example of the deposition, above, let’s see what happens when lawyer number 2 refuses to play the objection game: “Objection, the question calls for
speculation.” “Hmm. Maybe it does. I’ll ask it a dif-
ferent way.” It really doesn’t matter whether the
question called for speculation or not. There are probably a dozen different ways to ask a question, and you can figure out another way to get the information. How much money have you wasted while pay- ing for pages of colloquy with opposing counsel? You’ve fallen victim to the other lawyer’s game. He’s being paid by the hour and you’re not. He’s not paying for the transcript, you are. Hence the adage: “You can wrestle with a pig in the mud,
See Avoiding, Page 76
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