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When Your Client's the Boss Author(s): ROBERT M. CALICA Source: ABA Journal, Vol. 74, No. 6 (JUNE 1, 1988), pp. 80-82 Published by: American Bar Association Stable URL: http://www.jstor.org/stable/20759956 . Accessed: 12/06/2014 17:29 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. . American Bar Association is collaborating with JSTOR to digitize, preserve and extend access to ABA Journal. http://www.jstor.org This content downloaded from 185.44.78.144 on Thu, 12 Jun 2014 17:29:23 PM All use subject to JSTOR Terms and Conditions

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Page 1: When Your Client's the Boss

When Your Client's the BossAuthor(s): ROBERT M. CALICASource: ABA Journal, Vol. 74, No. 6 (JUNE 1, 1988), pp. 80-82Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/20759956 .

Accessed: 12/06/2014 17:29

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact [email protected].

.

American Bar Association is collaborating with JSTOR to digitize, preserve and extend access to ABA Journal.

http://www.jstor.org

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Page 2: When Your Client's the Boss

BY ROBERT M. CALICA

Criminal lawyers are accustomed to defending clients whose stan dards of dress and behavior do

not meet the general social criteria for respectability. As a matter of course, the attorney will clean up the client's act?get him a haircut and put him in a suit and tie, instruct him to re

main mostly silent and always polite, and guide him on the nuances of fa cial expression and physical posture.

Clients of commercial litigators, on the other hand, are normally at home in business attire and in com mand of the social graces. Typically, the commercial client is successful, articulate, and most eager to contrib ute to the construction of a credible, winnable case. Paradoxically, these very qualities can prove as devastat

ing to the outcome of commercial lit igation as impudent behavior or slovenly dress can be to a criminal defense.

The criminal attorney knows what the commercial attorney some times forgets: The untutored and un

managed client is his own worst enemy.

The client's testimony during the pre-trial deposition is especially crit ical in a commercial case for one sim ple reason: Most commercial litiga tions never go to trial. A recent New York Times analysis of litigation in the federal courts estimated that 71 percent of commercial cases were en

tirely or partially disposed of by sum mary judgment.

Unlike a tort or criminal case, a commercial litigation rarely depends on sharply disputed factual issues. In a tort setting, different accounts of a factual occurrence can produce

widely differing results. Almost nothing is free from doubt and only a jury or judge will determine whose perception is correct. In a criminal case, facts not only must be estab lished, but proven "beyond a reason able doubt"?requiring a searching factual inquiry.

Commercial litigation, on the other hand, is normally the result of unanticipated disagreements that have arisen during the course of a

business transaction. Typically a long paper trail?contracts, letters, mem oranda, checks and the like?has been generated. By the time discov ery is complete, a strong foundation of written documents makes the facts largely indisputable. The outcome of commercial litigation will depend on documentation, admissions, and the application of the controlling legal principles.

During the deposition, the liti gator will set about accomplishing three tasks: Proving only that which needs to be proven; establishing those issues which advance the client's po sition; and subtly guiding the testi

mony of the adverse witnesses to ^

extract a statement that will help win , , summary judgment.

It is during their deposition that clients can sabotage the most scru pulously prepared cases. These indi viduals?typically successful busi ness owners and executives?do not understand the negative impact a single misplaced word can have in a

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legal labyrinth of fine terms and ob- 4 scure principles.

Many commercial litigators have * noted a correlation between the level of business success achieved by the client and the potential for disaster during the deposition.

Robert M. Calica is a partner in Reisman, Peirez, Reisman & Cal ica, a law firm in Garden City, N. Y.

80 ABA JOURNAL / JUNE 1, 1988 ABAJ illustrations by John Schmelzer

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Page 3: When Your Client's the Boss

:

When Your

k Client's

It the Boss

step in disaster-avoidance is to un derstand his client's personality traits and the ways in which they may sur face to sabotage the case.

Because business owners and top executives are accustomed to calling the shots in the business world, they often, and quite naturally, persist in directing events in the legal arena as well. These clients want, and will often try, to control other witnesses, their own adversary and even the op posing attorney.

A businessperson's talent and, often, propensity for speaking his mind forcefully and convincingly are a particular danger. An individual who has built a commercial empire on the basis of negotiating skills, for

example, will often decide to dem onstrate these skills in the course of the deposition. He may view the dep osition as an irresistible opportunity to prove his industry expertise, his business acumen, or simply his high intelligence.

Frequently, business owners and executives have been involved in lawsuits before. A familiarity with terms and an understanding of basic concepts and procedures may give them a misplaced confidence in their

ability to contribute to the planning and execution of the strategy of their case. As in most endeavors, a little knowledge is a dangerous thing.

Therefore, no commercial liti

gator's case preparation is complete without first taking the time to im press upon the client the need for re

linquishing control. Sometimes a

businessperson can more easily ac

cept a back-seat role if its importance is explained in clear terms he can un derstand.

You might explain that just as the client built his business on care

fully crafted plans or manufacturing structures, lawyers build cases from

painstaking research and time-con suming examination of all the facts. If employees in the manufacturing plant did not adhere to established procedures or decided to change even one small part, the entire process could break down. The same holds true for commercial litigation.

Clients may need to be con vinced of their ignorance of the ter rain and of the consequences of

stepping into a legal minefield. They must understand that, unlike the tel evised murder trial, a commercial lit

m u\ nuinturgnm' v r

R

ecently, one of my clients was

'suing to terminate an agree ment to sell an office building

because he discovered that the sale would trigger a $1 million prepay ment penalty to a municipal agency.

During his deposition, however, my client felt compelled to point out that he had an additional justifica tion for cancelling the sale. Impend ing tax reform, he explained, introduced material economic changes in both the benefits and bur dens of the sale to all parties in the transaction. (In fact, it was the buyer who would be hurt most.)

Because my client was seeking to

justify his delay and ultimate refusal to close on the property, this must have seemed, from his standpoint, a desirable point to make. Instead, his unnecessary argument inspired the

opposition. First, a change in tax law was not one of the contingencies that would permit him to cancel the con tract. But, more importantly, if my client lost his suit to terminate the sale, the opposition now could sue him for millions of dollars in dam ages, since tax reform would not have affected this transaction if . my client had not delayed the sale. He was

lucky the case was settled. The commercial litigator's first

ABA JOURNAL / JUNE 1, 1988 81

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Page 4: When Your Client's the Boss

LITIGATION

The dient must be reminded that the friendly demeaner of the opposing attorney

is probably only a camouflage for a

dangerous combat strategy. igation turns, not on right or wrong, but on fine and sometimes obscure issues of definiteness, intention, en

forceability of contract, materiality of terms, or the application of statutory rules. Even if the lawyer could some how impart years of hard-earned knowledge to the client prior to the deposition, the client would still have to contend with the opposing attor ney who has developed a strategy of his own.

As basic as this sounds, clients may need to be reminded that the opposing attorney has

carefully prepared for the fulfillment of one, and only one mission: to win the case. As soon as that is forgotten, the client becomes vulnerable prey to the opposition.

Many clients do not recognize the difference between a deposition and a trial. You can explain that, since no judge or jury is present, there is no one who may be influenced by the client's "heart-felt" appeal. The

client's only audience is the opposing attorney. A professional paid to de feat your client's case or secure his liability will not be impressed by any displays of the client's conviction, wit or intelligence.

The client must understand, therefore, that his deposition cannot help his case, but only harm it. If his testimony is faultless, the opposing attorney will not use it at trial, on cross-examination, or on a summary

judgment motion, and the judge and jury will never (unless the trial ac count seems contrived) hear this per fect rendition. Conversely, any

misstep or error in the deposition will be exploited by a capable opposing attorney.

Whatever motivates the client? a desire to unburden himself, im press the questioner, or be in com mand?he must be made to under

stand that gratuitous information can

cripple or destroy his case. The op posing attorney will be listening carefully to all testimony with one strategy in mind: to uncover new and damaging information, and to note inconsistencies, inaccuracies, unwise

admissions of fact or law and erro neous statements.

I was representing a commercial real estate broker who was trying to recover a commission for procuring a

major department store tenant for a

Shopping center. Discovery had al ready shown that my client was re sponsible for first showing the site to the tenant, with whom he had done business many times before, but an other broker had technically con cluded the transaction.

The order and timing of events was a critical point in the deposition, but instead of limiting his testimony to the facts, my client began to give his opinions based on past dealings with the tenant. He testified that the tenant "could not possibly" have de cided to lease the space before receiv ing the report of a demographic con sultant. In fact, unbeknownst to my client, the tenant had, uncharacter istically, decided to lease the proper ty before receiving the report. My client's testimony, which was unnec

essary and entirely speculative, cast doubt about his real role in the trans action.

Because the deposition is not held in the courtroom, there are clients who mistake the atmosphere for that of a boardroom caucus and let their guard down?speaking frankly and casually. The client must be reminded that the friendly de meanor of the opposing attorney is probably only a camouflage for a dangerous combat strategy. By flat tering the businessperson or defer ring to his expertise, the opposing attorney hopes to get him to talk freely and say something damaging to his own case.

The best advice you can give your client is to tell him to answer questions honestly but succinct

ly, and to listen carefully. The only question answered should be the one that was asked. Unasked-for re sponses are likely to produce entirely new avenues of inquiry and suggest new lines of examination that may have otherwise never entered the case. Volunteering information to the opposing counsel is akin to feeding a breeder nuclear reactor.

A lowered guard, a casual atti tude, or a fear of looking foolish may

motivate a client to extrapolate, to es timate times and dates and guess at details rather than admit ignorance. Guesswork can easily discredit a truthful witness or introduce contro versies. A client must be reminded that it is the attorney's job?not the client's?to document the specifics. During the deposition, the client should request the attorney's assis tance for the required information.

The businessperson is almost al ways astute enough to guard his re sponses when the opposing attorney asks for a description of events that appear to be important to the case. However, a good commercial litigator has mastered the skill of unobtru sively guiding an adverse witness into a discussion of areas that do not ap pear significant. The unsuspecting businessperson lets down his guard and answers freely, not realizing that a crucial point is at stake.

Despite your painstaking efforts, there will always be clients who sim ply cannot resist interjecting opin ions and volunteering unnecessary information during their depositions. Because they make the best, most ex pensive and most popular widget, they refuse to acknowledge their ig norance in other areas.

A recent deposition given by one such individual sums up the prob lem. In a case involving alleged fraud upon my client, his company's pru dent conduct was an issue. My client was asked by the opposing attorney, "Was your employee fired or ever re primanded?" In spite of previous warnings to curb his oft-verbalized opinions, my client ignored the ques tion and volunteered an answer that

may well push the case into sum mary judgment: "If you want my per sonal opinion, my employee was, at the very least, stupid." 1-???-1

82 ABA JOURNAL / JUNE 1, 1988

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