33 Trial Lawyer • Winter 2024 Thanh Tran By Thanh Tran When I was a newbie insurance defense attorney, I was fortunate enough to be trusted to first chair cases (mainly because I had tried jury trials as a third-year law student at the city attorney’s office) and take the lead on depositions. Even though that trust gave me confidence, I recall a deposition where I was nervous as I was deposing the plaintiff’s medical expert on causation and the plaintiff was represented by one of the top personal injury attorneys in the Seattle area. The deposition was going well, or so I thought. Then I asked the doctor if they “had an opinion on whether the injuries sustained allowed the plaintiff to work.” The doctor said, “Yes.” In my mind, I heard, “Yes, the plaintiff could still work with the injuries.” I thought I made a great point. But the doctor and plaintiff’s counsel knew that was not what the doctor meant. When I concluded my questions, the plaintiff’s counsel asked the doctor, “What IS your opinion about whether the plaintiff could work due to the injuries?” The doctor gave a detailed answer on why the plaintiff could not work and how it was caused by the injuries. I share this experience to demonstrate that sometimes during litigation, we have to look at the bigger picture and not just the immediate battle. Because in that case, the plaintiff’s attorney could have chosen to not follow up with any questions and wait for me to make a fool of myself on cross-examination of the doctor at trial. Further, the plaintiff’s counsel could have objected to any attempts at a second deposition of the doctor. But that does not necessarily mean success for the client. Because, with the clarified questions from the plaintiff's counsel, I was better able to assess the defendant’s exposure in the case and maybe get more authority for settlement. In the end, that happened. I generally believe that the same result would have happened in Oregon, as the legal community in Oregon is commonly considered collegial and cooperative. This article should be viewed as lessons from the exception and not the general rule. Litigators often like to be prepared for any situation so below are some thoughts how to handle those exceptions. A difficult opposing counsel can be presented in varying strategies or tactics. Delays or non-responsiveness to communications, ad hominum or personal attacks, or bullying tone or tactics are just a few examples. Or sometimes a difficult opposing counsel attempts to assert their apparent acumen and experience. When such situations arise, however, I offer the following suggestions — emphasize your knowledge of the law, look at the bigger picture and view the case from the other’s perspective. Knowing the law One of the most crucial aspects of dealing with difficult opposing counsel is having a thorough knowledge of the See Difficult Defense p 34 Difficult Defense Counsel Embracing a Broader Perspective When such situations arise, however, I offer the following suggestions — emphasize your knowledge of the law, look at the bigger picture and view the case from the other’s perspective.
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