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. These two well-respected attorneys’ hostility toward one another drove the case. There were no more professional courtesies and the parties took extreme positions in their settlement negotiations. The case eventually went through a lengthy bench trial and appeal process that lasted years before plaintiff recovered an eight-figure judgement.

I always wondered what more I could have done as their Discovery Referee, but then I came to realize that I had done what the Court had sent me in to do–end the open hostility and get the discovery completed by the trial date. The professional relationship between counsel was beyond repair before I got there. So the real question is, “was there anything counsel could have done?” Although defense counsel regretted his outburst, there was never an apology. Instead, this incident entrenched counsel into becoming hostile combatants much to the eventual detriment of defense counsel’s clients.

The moral of the story here is “you gotta know when to hold’em and know when to fold’em.”  In other words, is your discovery battle worth it in the long run?  In this case, a simple, sincere apology could have put the case back on track, possibly leading to settlement and I may never have been appointed to wear the black and white striped shirt.