35 Trial Lawyer • Winter 2024 with them. As a defense attorney, I recall some moments when I was frustrated at a position I was asked to take, not by the client/insured, but by the insurer or the adjuster. Some insurers have reporting deadlines or case checklists, due every 30-60 days or within days of significant events (depositions, motions, trial). Other insurers have limits on how much time defense counsel spends on discovery responses, motions and their replies, legal research or depositions of parties, regardless of complexity of the case. They even have recommended scripts/questions for depositions. Finally, some insurers give no authority to defense counsel and every tactic has to be pre-approved. So, defense attorneys deal with these additional tasks in addition to more traditional aspects of representing the client. Therefore, if defense counsel is being obstructive, pushy or non-responsive, it may be because they’re following the procedure required by the insurer, have a reporting deadline to the insurer or do not have authority from the insurer to proceed. It has nothing to do with the merits of the case or you as an attorney. Additionally, considering the defense perspective also helps plaintiff attorneys anticipate potential challenges and tailor their presentation to counter them effectively. For example, knowing that defense counsel has reporting deadlines, it’s recommended that plaintiff’s attorneys dictate the pace of the case by asking for an answer, driving written discovery, taking depositions and filing necessary summary judgment motions. Because during and after these events, defense counsel often have to report to the insurer/adjuster, which sometimes includes an opinion on the jury value of the case. It also forces the insurer/adjuster to evaluate the case (report to their superiors). A great example of this occurred when I pursued a case against a corporate defendant. The opposing counsel was dragging their feet in providing the requested and relevant corporate records. They provided boilerplate objections. When pushed, the defense counsel would not commit to a timeline for production and would not agree to a privilege log for any redacted information. So, after an exchange of contentious emails and phone calls, a motion to compel was filed. I was upset. I took it as a personal attack on me because they necessitated a motion to compel for discovery that was customary for a corporate defendant. But as you are aware, motions hearings are not heard until one to two months after filing of the motion. And by the time of the motions hearing, the judge likely could tell that some communication needed to be mended and ordered us to go into the jury room to sort out what we could agree upon and come out with any topics that we could not agree upon. Opposing counsel and I spent about 30 minutes and pretty much came up with a timeline for full discovery for the entire case. We did not need the judge to rule on any differences. The point of this story is I believe initially the defense counsel did not have authority from the insurer to provide the discovery. But by the time of the motions hearing, the defense counsel had sufficient time to advise and convince the insurer that resisting disclosure was futile. As such, when I am receiving some resistance from opposing counsel, I try to take a step back, resist writing that incendiary email and recall what it felt like defending these cases and having the dynamic of the tri-partite relationship between the attorney-client-insurer. Then, I try to evaluate the situation to see how to best move this case forward, which is typically what is best for my client. Conclusion Dealing with difficult defense counsel requires a combination of legal knowledge, professionalism and a broad perspective. By knowing the law, attorneys can navigate legal arguments with confidence and develop effective counterarguments. Maintaining a broader perspective allows them to focus on the pursuit of justice and rise above personal conflicts. Moreover, viewing the case from the defense perspective enables plaintiff attorneys to anticipate challenges and tailor their approach accordingly. Ultimately, by staying professional and embracing a comprehensive view of the case, plaintiff attorneys can effectively address the challenges posed by difficult defense counsel. The adversarial nature of the justice system need not hinder the pursuit of justice, but rather serve as a catalyst for a fair and rigorous legal process. After several years as a trial lawyer, Thanh Tran was sworn in last year as a Clackamas County Circuit Court judge. He can be reached at 807 Main St. Rm. 311, Oregon City, OR 97045. He can also be contacted at [email protected] or 503655-8432.
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