your persuasiveness. And if a response is necessary, do not dignify the insult with an in-kind response. At most, write something like, “I will
not respond to your characterization.” If your fees are contingent, you should focus on what is productive. If your fees are hourly, your client should not have to pay for mutual name-calling that does not further his interests.
Maintaining flexibility Unwillingness to bend, to compro-
mise, or to acknowledge fault is not the mark of a skilled advocate. It is distasteful when we observe it in our opponents and when our opponents observe it in us. Being flexible requires a willingness
to give in when we are wrong or when it will serve a larger purpose. For example, in a debate over deposition priority, you might “submit” to the demand that your expert be deposed first, because you will be able to interrogate their expert about his disagreements with your expert’s testi- mony. And your expert’s opinions about the other expert’s positions will remain unknown to the opposition. Similarly, if you represent a plaintiff,
your “submission” to the defense demands that their physician-client be deposed in his office allows you to copy all of the titles of journals and books on his shelf, or to ask him to identify them. That might come in handy when a chap- ter in one of his books is contrary to his opinions or actions. The concept might be best understood as an allegory: A stream chuckles along between its
banks. In the middle of the stream stands a large rock, commanding with all its presence for the waters to stop. But the waters keep churning and flowing along; bouncing, streaming, and flowing over the rock. The water has direction – it has flexibility. Be the water, not the rock.
Civility At the heart of much conflict in litiga-
tion is the failure of civility. We are taught in law school that we must represent our clients zealously. But zealous representa- tion does not require acrimony. We can be strong and forceful advocates, but in a
manner that does not destroy our profes- sionalism and effectiveness. In Taming of the Shrew, Shakespeare
said: “And do as adversaries do in law – strive mightily, but eat and drink as friends.” Collegiality encourages coopera- tion. So, instead of sending a flaming fax or e-mail, make a personal connection. A tailgating driver on the freeway would likely not engage in such conduct if he were face-to-face. So, remove the barrier that encourages nearly-anonymous bomb- throwing. Pick up the telephone. Have a conversation.
Final thoughts These suggestions will not always be
successful. And you must be prepared to write meet-and-confer letters, file motions, go to court, and show that you
are prepared to fight. But these should be measures of last resort. If you treat the prac- tice of law as a rat race, even if you win, you’re still a rat. Conducting yourself honorably and treating your opponent with respect is its own reward, transforming a rat race to professionalism. John Blumberg has been practicing tort lit-
igation law in Long Beach for 32 years, spe- cializing in medical and legal malpractice cases. He is A-V rated and Board Certified as a Trial Lawyer by the National Board of Trial Advocacy. He was a nominee for 2005 CAALA Trial Lawyer of the Year. He serves on the CAALA Board of Governors and is the CAALA Parliamentarian. He also serves as an arbitrator and mediator for the American Arbitration Association.
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(626) 744-3540 APRIL 2011 The Advocate Magazine — 77
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