As stated in last week’s Tip “if you see something, say something”. This applies especially in litigation, which is often extremely stressful. An experienced litigator related an incident that can serve as an example. A highly agitated and excitable adverse party arrived for a deposition and slammed his briefcase on the conference table. The sound indicated the briefcase was uncommonly heavy. The litigator privately asked opposing counsel to meet separately with his client and check to make sure the brief case did not contain a weapon. He agreed to do so and all went well. The witness even calmed down a little for his deposition.
On occasion in mediation the ability to improvise will be important. Two factors increasing the likelihood of successful improvisation are (i) effectively listening to the verbal and non-verbal communications of your opposition and (ii) being creative in determining how to influence them. Make the most of unexpected opportunities to learn about the other side’s position and benefit your own.*
*Thanks to Michael Wheeler of the Harvard Business School for the concept shared in this Tip.
One of the most important factors in effective mediation (and communicating generally) is listening. Listen to and observe closely what is being communicated verbally and non-verbally by the other side. Don’t use the time the other side is talking to think about how you are going to respond. Don’t use the time the other side is talking to tell yourself why they are wrong and you are right. Listen!
When dealing with problems relating to an expert witness, motions in limine can be a very effective tool to make your points with the Court. Even if not successful, you are highlighting issues which may stand you in good stead later in the proceedings.
More thoughts on expert witnesses and knowing the facts from one of the best litigators I know, in her words: “This is a pretty ripe area for Tips. Not only to know your facts better, but to know how to tweak facts hypothetically to make his argument ridiculous/wrong, knowing his background, how much he is being paid, how much time he actually spent reviewing the case, did he read the whole file? When? How long has he been thinking about this? Anything similar? Did he actually see objects/area in question in person or speak to people involved . . . ”
I HOPE YOU AND YOUR LOVED ONES ARE SAFE AS HURRICANE IRMA PUMMELS OUR SHORES.
Here I repeat one of my very favorite Tips. I present it annually as the first post-Labor Day Tip. I only wish I had been there!
Do a thorough background check! At a DCBA Bench and Bar Conference Federal District Court Judge Cecelia Altonaga shared a rather memorable incident which occurred in her courtroom. An expert witness gave a lengthy, erudite presentation. Opposing counsel’s first question on cross: “Does your probation officer know you are testifying here today?”
Always depose opposing fact witnesses and investigators before deposing the opposition’s expert, per the late Ervin Gonzalez, much admired man and top litigator. This will allow you to challenge the expert’s factual foundation where appropriate.
Three simple words: Trust but verify.
To the greatest extent possible, do not allow the witness to claim he or she does not remember. As an example, have supporting documentation, appointment records, excerpts from other depos or pictures. You, not the witness, must to control the deposition. Make it difficult for the witness to claim lack of recollection.
Fixating more than is appropriate on the first number put forth is a common phenomena. That’s what makes it the “anchor” and why it is so important to address it properly, whether you are the one putting it forth or the one reacting. In many mediations it is desirable to anchor first. This may help you influence the other side’s perception of the range of possible resolutions. It also may also help set that range. Anchoring first may be both a good offense and a good defense.