Our host Sean Harris sits down with Columbus attorney Scott Bowman to discuss the different types of difficult opposing counsel and how to deal with their behavior.
Sean Harris: Hello and Welcome to Civilly Speaking, OAJ’s podcast for our members. I am your host Sean Harris. We are pleased today to have Scott Bowman from Columbus. Scott, Welcome.
Scott Bowman: Welcome
Sean: Scott is with the firm Cecil and Geiser here in Columbus and handles all matters of personal injury cases.
Scott: That is correct.
Sean: Alright Scott, our topic today is dealing with difficult opposing counsel and you’re going to tell me that there is such a thing as difficult opposing counsel.
Scott: Shockingly, Sean, there is. And sometimes, I have even been characterized as such, believe it or not.
Sean: What have you seen? Are there categories that opposing counsel kind of fall into?
Scott: Yes, and I think probably the one that everyone is probably real happy to deal with is the “Yeller.” Just someone who is not a happy camper, we will say that. Someone who, you know, you have a case and you look at the things that you need to do today and you see this attorneys name as someone who you need to call and you need about three cups of coffee, with bourbon in that coffee, before you call this person. I have found that, number one you probably need to call that person first. I am a firm believer in getting the things that you don’t want to do out of the way first. But I try to kill them with kindness. I try to do my best not to get into that back and forth. But sometimes that doesn’t even work.
Sean: Do you find that putting it in writing with those folks has any effect?
Scott: I think it can help. Sometimes, let’s face it, you are dealing with someone who is borderline insane and I think that sometimes seeing what they said in writing gives them an extra boost; but I do think that sometimes putting it into writing is helpful. Sometimes, I think that just not talking to them on the phone, using email… I am not a huge fan of doing that. I don’t think it helps with civil discourse and the like. I always think back to a seminar I went to not too long ago to meet my CLE’s relative to professionalism and the like, I wish I knew the guy’s name, he was not a brain surgeon but a scientist regarding the human brain, and it was all about how lawyers need to deal with stress. He showed us biologically how stress kills people and literally they’ve gotten to a point where they can take imaging of a person’s brain and stress actually shows up on these imaging studies as these white dots. He explained to us those are holes literally being burnt into your brain. So every time I am getting all riled up because I am dealing with one of these yellers and the like, I just take a step back and tell myself I am not going to burn my brain over this.
Sean: Did the expert have any idea about plaintiff’s lawyers versus defense lawyers and who has more holes in their brains?
Scott: I would say defense lawyers of course, but I am a bit biased.
Sean: Alright, so we have the Yeller. Who else have you encountered?
Scott: I would call this attorney the “Frivolous Filler.” I think we have all encountered the attorney who they want what they want and they want it yesterday. If you don’t answer their discovery exactly as they have asked you to, you know what’s going to come. It’s going to be a motion to compel; even if you send them a letter or try to call them to work it out. You send them a letter citing the case law or a statute to try to work it out and you’re still going to get that motion to compel. The hardcore frivolous fillers are going to attach a motion for sanctions with that.
Sean: How do you deal with those folks?
Scott: I think I already alluded to that. Now if you are dealing with a frivolous filler and a yeller, you are really in trouble because you are not going to want to pick up the phone. But let’s assume it’s not a yeller, first thing I like to do is just pick up the phone and try to work it out. If it’s clear that you are dealing with someone who is going to see things one way and one way only, that way being theirs, you definitely want to follow that up with a letter. I think it’s going to take some extra time to build up your memo contra to their motion to compel that you know is going to come. That is a good time in your letter to cite some case law or statutory law or rules of civil procedure, rules of evidence backing your position so that you can show the court pursuant to Civil Rule 37 I really did try to work this out. I know I personally don’t appreciate it when an attorney states their position and they don’t back it with anything other than “because I said so”. So I try to give them the same courtesy.
Sean: I understand that you have also encountered a super hero among defense lawyers, “Captain Objection.”
Scott: Yes! Captain Objection has a big “O” on his chest. This is the attorney who is going to either frivolously object or is just going to object over and over and over. Now if that is happening in the courtroom, obviously you are going to want to have a sidebar with the judge. I have found that most judges want their trial to move along, so they are going to nip that pretty quickly. So, usually it is going to come up in a deposition. My tactic with that, and it might be a bit unorthodox, and I’ve done it in discovery depos or even trial depos, is that I just stop and look at opposing and go “You know what, you can have a continuing objection on everything, anything and everything, I will state that right now. It is on the record. You’re preserving all objections.” And what is really funny, if you are encountering the superhero Captain Objection, I’ve had attorneys say “No, I am not letting you do that.” Now they really just look a bit silly. That’s when, especially if you are doing a video deposition, you want to say “Well ok, if you want to waste the jury’s time I guess you can state your objection every single time.”
Sean: Now does Captain Objection from time to time also make speaking objections?
Scott: Of course, that is in his arsenal.
Sean: How do you deal with speaking objections?
Scott: The speaking objection, obviously if you are in a discovery deposition, it comes back to that you need to call the attorney out in a professional manner. “Look Counselor, this is your second speaking objection, you are coaching the witness, you know that is improper, so can you please stop?” Then if it continues, I like to stop the objection and off the record have a civil conversation; “Look you know that you are not supposed to do this. It’s unfair to both parties; you are not following the rules of professionalism and the like.” If it happens a third time, that is typically when on the record you say ” Look, if this happens again we are going to have to cancel this deposition and the next time it takes place it is going to be in front of the judge.” This won’t come as a surprise to our audience, but judges don’t like to deal with discovery disputes very much. While it may come across as a bit too cooperative or maybe I need to be more hardcore, I think you need to give them several opportunities, so then when you are scheduling a deposition in the courtroom in front of a judge through the staff attorney, you can say “Look, I gave opposing counsel every opportunity.”
Sean: This is the last resort?
Scott: Yeah, exactly.
Sean: We’ve been talking about depositions and I think you made a good point, at least in front of the jury, whether it is a video trial deposition or trial itself, the frequent Captain Objector probably does more harm than good in the jury’s eyes if he or she continues to object over and over again.
Scott: Yes, I completely agree with that. A lot of it is that you are there in the moment, and you can get a vibe for your jury. I would say typically I love it when opposing counsel is objecting constantly. When a jury hears objection, they hear “that lawyer is trying to hide something.” It’s even better when it’s a really emotional or important part of the trial and the jury wants to hear what that witness is going to say and then “OBJECTION.” The jury is going to blame the person trying to cover it up.
Sean: At some point they say, I just want to hear what he’s got to say.
Scott: Yeah, exactly. In a deposition it is a little different, where I think what’s going on is that the attorney is just trying to disrupt you and trying to get you off your game. That’s when I think you need to call the attorney out. Another thing I like to do is ask for a basis; you know what’s the basis. I’m sure we’ve all been there; “Well I don’t have to give you a basis” “Well, no you do because depositions are done as if they are in trial and you need to give a basis so that I may have the opportunity to correct it.” Sometimes if you approach it like that instead of in a harsh manner, just “Hey, I need a basis so that I can correct it because you know I am screwing up so much and I’m not near as seasoned as you, opposing counsel.”
Sean: So not necessarily taking the antagonistic approach but it is still trying to correct the behavior.
Scott: Yes, exactly.
Sean: We talked a little bit off air, not just objections in depositions but also objections in written discovery and interrogatory answers. I don’t know about you, but I have seen increasingly recently these general objections before any answer is given. These kind of peremptory objections. Which as far as I can tell there is no basis in the Civil Rules and it’s improper. Have you seen that more and more these days and how do you deal with it?
Scott: Yes, I have seen that more and more these days. It’s to the point where sometimes I just skip over the first three or four pages because all that it contained is opposing counsel’s paraphrasing of the rules if you will. When I was a little more aggressive and had a little more time on my hands, I would do my own objection prior to my client’s answers and that these are being answered pursuant to Civil Procedure Rule 26 and 33 and/or 34 and we are following those rules not yours counselor. It sounded a little cooler and nicer than that.
Sean: You mean State Farm doesn’t get to make up the rules?
Scott: I don’t think so. You would think by the way that they behave on occasion. It’s one of those things where you don’t want to burn your brain, so chose your battles. I just ignore that. I have my clients answer pursuant to the Rules of Civil Procedure. I’ve never been called on it. I don’t really know what they could call me on.
Sean: That’s kind of what I have come down to too. I’m sure they feel really good getting to put out, look how tough I am…I put on all these general objections. But to what end?
Scott: Exactly. Actually Sean you bring up a good point. The other way to put this all into perspective and not get too stressed out and not die at a young age… A lot of times, let’s face it, defense counsel lives in a different world. Maybe this is another superhero, the Poison Pen Attorney – General Poison Pen, that letter is being written so that they look tough for their insurance rep, they look tough for State Farm or Allstate, what have you. If you really think about it it’s kind of sad that they need to do that. One of the reasons that I love what I do is that I am answering to a real living breathing person who really needs my help and that always tends to put things into perspective.
Sean: One category of opposing counsel that we haven’t talked about yet is the Paraphraser.
Scott: This is one that I personally feel that I am encountering more and more. I usually see it in motions for summary judgment, motions to compel, what have you; wherein the attorney paraphrases the law or facts. I see it a lot with the law. More and more I am finding that you really need to be diligent in shepardizing, thank god we can do it via computer now. You need to shepardize that stuff because more and more I am finding that opposing counsel will cite to a case and they will paraphrase what that case means. You’ll look that case up and it’s not even close to how counsel is characterizing that case or it’s not even close to fitting with your particular fact pattern.
Sean: By the way, do you for that reason end up attaching case law as exhibits to motions and replies?
Scott: I always do, yes. Definitely and that is a great point. A lot of this is that you want to start getting stuff in front of the judge or staff attorneys so that they see that you are being above board. The easier that you make their job, the more likely they are to actually read what you are putting in front of them. I definitely attach my case law. What I do when I am up against the paraphraser is, for example, when I get a motion to compel, and it usually comes up a lot with it being said about me that “I am the only lawyer in the whole state of Ohio who does X,Y, and Z. That’s me with the Ohio’s Physician Patient Privilege. I am the only lawyer in the whole state of Ohio who won’t have my clients sign these broad based blanket authorizations. I get motion to compel filed against me often. The last time that I researched the issues there is only one district that says you have to sign them. So it comes up in that context a lot and I am finding that attorneys will cite to this same case over and over and over, even if you are not in that particular district. I like to then point out that this is your chance to be forthright with the court and point out that this case does not apply and that this case is from the third district. You might want to cite to all of those cases in the tenth district that say I don’t have to sign this authorization and the ultimate resolution is an in-camera inspection. That works a lot. Whether it is the physician patient privilege issue or something else, I just send a letter to the attorney saying I looked at this case, it doesn’t stand for what you said and here is your chance to correct the record. A lot of times they actually will.
Sean: Scott, this is my favorite part of the podcast now. It’s called five questions. You have not heard these questions before and you do not know what’s coming? Alright, question number one, Scott Bowman, what was your first car?
Scott: It was a 1988 Ford Mustang, it was sweet.
Sean: And how did it meet its demise?
Scott: I think I just drove it to death. I really don’t remember. That’s sad.
Sean: Question number two, what did your parents do?
Scott: My dad was an accountant for what used to be called Allied Chemical and they made refrigerant gas and that’s where I worked summers and that’s what really made me study hard at school because I thought I did not want to do this for the rest of my life.
Sean: That will teach you.
Scott: This refrigerant gas, you would spray it on yourself and in the dead of summer you were getting frostbitten when it was 90 degrees out. It was pretty odd.
Sean: Question number three, and you may have just answered it, what is the most interesting job, other than being a lawyer, that you’ve ever had?
Scott: I bartended, that was always interesting. … you wear a lot of hats as a bartender.
Sean: You would recommend that for students who are looking to become lawyers?
Scott: Yes, yes I would. Now this wasn’t a fancy bar by the way. It was called Fat Man’s Warehouse and the entrance was from an alley way. I would recommend that you bartend at some place that is a little more above board.
Sean: Question number four, what is your guilty pleasure when it comes to music?
Scott: My guilty pleasure? I love old school rap; Beastie Boys, Public Enemy, that kind of stuff.
Sean: And your kids think what of this?
Scott: My daughter is the older one and she is in that mode where nothing that I do is cool, so she makes fun of it. Of course I argue with her about how they were actual musicians not like the crap today, but then realize that they weren’t really playing anything either. My son thinks it’s cool but I am sure that he will grow out of that.
Sean: Last question, true or false, when you worked at Fat Man’s Warehouse you were keeping it real?
Scott: Yes I was, True!
Sean: Scott Bowman, thank you very much for joining us here on Civilly Speaking.
Scott: Thank you Sean.