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Negotiating Litigation: First You Have To Win

I play squash.

I learned to play the game when living in New York and continued to play at U.C. Davis (Law School) which had both regulation courts and racquets to lend.

At a time when racquetball courts were being constructed with the speed of social media sites, I continued playing squash for pretty much one reason:  I’m a woman and just about any (mostly male) colleague I played with could beat me out of sheer physical strength.  Though both games require strength,  squash requires finesse and strategy more.

How did I get my legal colleagues off the racquetball court and into my game of  squash?  Simple.  I told them I had no chance of beating them in their game (flattery, ingratiation, a “contentious” dispute resolution tactic) but that I was confident I could beat them at mine (challenge or “threat,” also a “contentious” tactic).

So what do I mean when I say you have to “win” your litigation before you can settle it?  I mean you need to get your adversary playing on your court and actually win a few rounds.  You can shake your stick and fulminate and threaten, but unless you’re capable of actually winning, your adversary’s Best Alternative to a Negotiated Agreement (his BATNA) is beating the pants off you at trial or watching you fold like a lawn chair on the courthouse steps.

In most litigation, the first chance you have to prove your trial skills is in a deposition.  Yes, you want to obtain information and that’s pretty easily done so long as you remember to ask reporter questions (who, what why, when, where and how).  You shouldn’t, however, stop there.  Show opposing counsel that you can also theory test and undermine his witness’ credibility on a few points, without giving away your entire game plan.

Whether you win by smashing the ball deep into your adversary’s court or by aiming it oh so close to the “tell,” letting it softly roll to the floor while your adversary is panting by the back wall, you must win on strength or skill or finesse (whichever you’re best at) before you’re entitled to “win” by way of settlement.

That being the case, I give you the first of a three-part series on how to lose the game at deposition, a challenge to get you thinking about “winning” it there.

From Illinois Trial Practice:

 15 Ways to Ruin a Deposition (Part 1 of 3)

In this series of posts, I’ll dig into the archives of The Trial Practice Tips Weblog and highlight some of my prior posts about depositions. Although you can see all of these post in this weblog’s deposition category, I thought I’d try to reorganize some of them in a new way.

I’ll begin with the first five ways a lawyer can ruin a deposition. I’ve been guilty of all of them at one time or another–

1. Deposing someone who doesn’t need to be deposed at all. Unnecessary depositions are a waste of time and money. See this post: “Not Every Witness Need to Be Deposed.” 

2. Failing to investigate the witness online. Just a few minutes of Internet research can turn up lots of things about a witness you didn’t know before.  Here’s a post about that: “Deposition Tip: In Preparing for a Witness, Always Check the Web.”

3. Trying to wing it. Maybe you’re so good that your only preparation is getting to the deposition on time. Sound foolish? It is. See this post: “The Dangers of Winging It in Depositions.”

4. Neglecting the preliminary questions. Those cookie-cutter questions lawyers ask at the beginning of a deposition have a purpose. Don’t skip the “you know you’re under oath”-type questions, but don’t turn them into a speech either. Here are two posts that make these points: “Those Preliminary Deposition Questions: What’s Their Purpose?” and “Those Preliminary Deposition Questions: Don’t Make a Speech.”

5. Assuming the witness is telling you the truth. As human beings, we’re conditioned to believe what people say. I feel like I am, at least. That’s why I’m constantly making this mistake, even though I wrote this post: “Practice Tip: “Assume Your Deposition Witness Is Lying.”


Victoria Pynchon

Attorney-mediator Victoria Pynchon is a panelist with ADR Services, Inc. Ms. Pynchon was awarded her LL.M Degree in Dispute Resolution from the Straus Institute in May of 2006, after 25 years of complex commercial litigation practice, with sub-specialties in intellectual property, securities fraud, antitrust, insurance coverage, consumer class actions and all… MORE >

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