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Learning how to practice law in front of one judge at a time

The peril of asking one question too many

I’ve got a few cases that are best described as hot garbage and that’s why they are mine. The partnership has deemed them to be lost causes that someone has to cut their teeth on to learn the dark arts of lawyerdom. The best part of cases like these is that I have absolutely nothing to lose and absolutely everything to gain. The same cannot be said for my adversaries in cases like these.

In the past, I’ve been handed a lost cause file such as this case and was able (1) to win at trial in one, (2) convince the other side to settle in another and my personal favorite (3) take one deposition that resulted in a settlement twenty times larger than was originally hoped for. That’s not to say I haven’t had an equal or greater number of these cases completely blow up to the point of being unsalvageable…but I’ll save those for another day.

But back to the case at hand…

This is a matter where the Plaintiff is an ideal human being. Truly. She’s a minister hell bent on saving the underprivileged with absolutely no skeletons hanging in her closet. If I could make a model client, it would be her. Unfortunately, her case is one where proving liability is a major problem. Defense counsel seemingly knows this but is hell bent on billing every hour imaginable before delivering the kill shot. Think of a bear toying with its dinner but instead of just a fur coat, the aggressor is wearing a Gucci suit, Louboutins and has the fur coat slung over an empty conference room chair.

Thankfully this scene is devoid of a tuna being tossed mercilessly in the air.

The deposition in this post arises from is of an independent expert who was not disclosed to opine on liability whatsoever. I have no idea why defense counsel decided to depose my expert and I didn’t really object to it as they were footing the bill. It went as expected: meaningless testimony after meaningless testimony. Then it was my turn to ask meaningless questions that attempted to find new ways to attach liability to the defendant but to avoid the underlying main liability argument (due my thinking that it is weak as hell). My questions were derived from the age old legal strategy “where there is smoke, there is fire, I hope.” In essence it was playing small ball in the hope that it would frighten Defense counsel into coughing up a little something for my trouble and this strategy didn’t expect to do much other than maintain the status quo. What I failed to account for was an overzealous defense attorney that asked one question too many. Without disclosing the subject being testified about, the question and answer went something like this:

“Mr. Expert, testimony has established that in this case the defendant was faced with a similar situation like we’ve talked about and he did X. In your expert opinion, so we’re clear, did the Defendant act properly?”

The defense counsel was going to try and spike the football with regard to their liability defense. There was no need for it and I didn’t expect it coming based on the testimonial evidence so far, but apparently this lawyer did not want to quit when she was several touchdowns ahead. But she asked the question anyway. I saw what was coming a few milliseconds before it was verbalized. The witness shifted in his chair ever so slightly, pursed his lips and proverbially punched the ever living shit out of a defense counsel leading with her chin:

“In my expert opinion you have to do X but you also have to do Y and Z, as well as A, B and C. And that’s not enough either, you have to do X over and over and over and over and over again. And then you have to make sure that X worked. Only then can you say what you did was proper.”

The smile on my face grew with each word coming out of the witness’ mouth. The response seemed like it went on forever because it was burying the defense one syllable at a time. I don’t know what the end result of the case will be, but I can assure you that this one is no longer a sure fire loser.

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About thenambypamby

Lawyer in Chicago. I blog, I tweet, I try to stay anonymous.


4 thoughts on “The peril of asking one question too many

  1. A tuna?!

    Posted by fitzesq | January 23, 2013, 2:53 pm
  2. I have two requests…

    My first request is that you RUIN THEM! Take from both the defendant and their counsel the very will to live. When it is all over, they should be left in TEARS!

    Second, when it is all over, a case number so I can look this up on PACER and be amused all on my own, in private, with some candles and soft music and perhaps a glass of wine.

    Posted by AblativMeatshld (@AblativMeatshld) | January 23, 2013, 11:01 pm

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