Can we talk?

As a mediator, there is always a case that you question yourself as to what you could you could have done differently in order to resolve the matter.  My case involved a personal injury case.  It appeared to be straightforward, as the defendant had admitted liability and the plaintiff ended up having surgery allegedly because of the accident.  Unfortunately, the mediation process went sideways before the mediation even began.  While introducing myself to the defense attorney who had arrived first, he said

I’d like to get to the point and save some time and money.  If they aren’t willing to take (25% of the cost of the surgery), then let’s end this and have a nice lunch.


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Today I read a great article by Minnesota attorney Randall Ryder titled New Attorney? Don’t Get Intimidated by Opposing Counsel. The article struck a cord with me as it is a proponent of the same philosophy that I am advocating in my own blog–don’t be intimidated by a bully, do not react with words in kind and use the “Rules” to win. Here it is and I hope it hits a cord with you too.
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Last spring I had the pleasure of taking a tour of the Royal Globe Theatre in London, England. On display there was a plaque titled “Quoting Shakespeare.” It brought a smile to my face when I read the passage as I realized how much of Shakespeare is in our everyday vernacular. There to I realized how many distinctive quotes there that I use over and over again as a Discovery Referee. Here are a few that you should keep handy to sprinkle into your arguments during your discovery battles.
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Nine years ago, in the middle of a Deposition, defense counsel called plaintiff counsel a “Bitch.” Plaintiff counsel immediately filed a motion for a Discovery Referee and I was appointed. The court ordered that I sit in on all the depositions and attend the site inspection. All communication including the scheduling of discovery was to be done through me. When I look back on this case, I realize that the moment defense counsel used the word “Bitch” it became the turning point of the case.
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The moral of the story is that court reporters are the caretakers of the deposition. Their job is to accurately record all statements made in the deposition for later review by attorneys, judges and appeals courts. It does nobody any good if the court reporter can’t get down an accurate rendition of the deposition. So, at the beginning of the deposition, advise the court reporter and all parties in the room that the court reporter is the “Goddess of the Transcript” and she is to immediately tell you all when she can no longer get an accurate rendition of the deposition. If the yelling, hostility and abuse continues, then recess the deposition and go to court and get a protective order and/or request a referee be appointed to sit on the continued deposition. See C.C.P. §§2025.420 and 639(a)(5). Do it sooner than later because your goal is an accurate transcript.
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