34 Trial Lawyer • Winter 2024 law, which includes local practices. A solid understanding of legal principles and precedents not only empowers attorneys but also enhances their ability to counter arguments effectively. By staying well-versed in relevant statutes and case law, attorneys can anticipate opposing counsel’s tactics, identify weaknesses in their arguments and respond with confidence. There are two instances that demonstrate the importance of knowing the law, especially the local rules. First, in a heavily contested case in a county outside the Portland area, opposing counsel made numerous overreaching and broad requests for production. Timely responses were served that contained objections to the requests. The opposing counsel sent an email saying they disagreed with my objections and invited me to contact them to discuss it. The email was followed shortly by a motion to compel. At the hearing, the opposing counsel argued the email sharing their disagreement along with the invitation to discuss satisfied the requirements of UTCR 5.010(1) requiring the moving party to make “a good faith effort to confer with the other party(ies) concerning the issues in dispute.” In contrast, I relied upon the practice and procedure of Multnomah County, specifically the Civil Motion Consensus Panel Statement No. 4, Motion Practice, which states: (a) conferring “means to talk in person or on the phone” and (b) “a letter to opposing counsel, even one that includes an invitation to call for a discussion, does not constitute a good faith effort to confer unless the moving party makes a follow-up phone call to discuss the matter.” Even though I did not cite to the Multnomah County practice, I argued that a conferral was not conducted. (I learned early in my litigation practice it’s not recommended to use “this is how Multnomah County does it” as a basis for a legal position taken in a non-Multnomah County court.) The court agreed with the opposing counsel and ruled that a conferral was made. I suspect that opposing counsel knew that their actions met the threshold of the conferral requirement and thus did not take further action as to call me. Because of this experience, I now know inquire about the local laws and practices and how the court interprets them. Similarly, I have used the Multnomah Consensus Panel Statement in a dispute with a non-local attorney. That attorney was from a larger out-of-state firm, and we were in a discovery dispute in a personal injury case. They wanted all of my client’s medical records for 10 years prior to the incident and to the present. I objected. In my response, I cited the Consensus Panel’s language that ORCP 44C authorizes discovery of “records relating to the ‘same body part or area.’” I assume the opposing counsel researched and inquired with local attorneys who likely shared that practitioners and the Multnomah County bench adhered to this local rule. They dropped their request for all medical records. Therefore, understanding the law can help formulate litigation strategy and can provide effective counterarguments to a difficult opposing counsel. This comprehensive understanding of the law, including local practice and procedures, enables an attorney to navigate the courtroom with professionalism and competence, regardless of the challenges posed by the opposing counsel. Looking at the bigger picture In the midst of contentious legal battles, it is essential for attorneys to maintain a broad perspective and focus on the bigger picture. The pursuit of justice should be the primary goal, and personal animosity toward the opposing counsel should not cloud this objective. So, by reframing the case as a quest for truth and fairness, attorneys can rise above the challenges and maintain their professionalism. Further, looking at the conflict from a judge’s or fact-finder’s perspective may provide a different avenue for reaching a resolution. For example, I was involved in an injury case and faced a motion to compel by opposing counsel. In their reply brief and at the motions hearing, the opposing counsel argued that my response was late (filed one day after the deadline). The motions judge asked if I agreed that my filing was one day late, and I thought the motion to compel would be granted. But then the judge looked at opposing counsel and asked if they had been prejudiced by the one day. Were they unable to review the response and file a reply brief? Opposing counsel said no. The judge said now that is resolved, he would consider the merits of the motion (and opposition) to the motion to compel. The lesson learned from this experience is that sometimes litigators get so involved in trying to be right that we sometimes forget the broader goal of getting the case to a point where it can be resolved, either by settlement or trial. And if we do not cooperate in getting the case to that point, no one will win. So resist that initial instinct to respond immediately. Step away. Focus on the ultimate goal of having a just and fair result. Viewing from the defense perspective Similarly, to effectively deal with difficult opposing counsel, attorneys should make a conscious effort to view the case from the opposing counsel’s perspective. By doing so, they can gain valuable insights into the motivations and strategies employed by the opposing counsel. Understanding the opposition’s point of view can assist attorneys in developing stronger arguments and addressing potential weaknesses in their case. Also, this understanding allows attorneys to approach their interactions with opposing counsel with empathy and professionalism, even in the face of aggressive tactics. As I do have some prior experience as an insurance defense attorney, I do have some insight and empathy when dealing Difficult Defense Continued from p 33
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