January 2nd, 2021 5:26pm - Posted By: Mark Cohen
IDENTIFYING AND DEALING WITH OPPOSING COUNSEL THAT ARE LFOP
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The law -- at least the litigation side of it -- is an adversarial profession. Disagreement comes with the territory. Still, I like most opposing counsel I work with. A few, though, are full of poop. If you are dealing with a lawyer full of poop (LFOP), it's nice to know it from the start. This screed summarizes some indicators that opposing counsel may be an LFOP and suggests ways to deal with them.
1. The first communication from opposing counsel is a request for a lengthy extension of time to answer.
Yes, there are times when a client receives a summons and delays hiring counsel until the last minute. In such cases, opposing counsel may legitimately request an extension of time to answer. But those cases are rare, and that is unlikely to be the case if the defendant is an entity with in-house counsel or a standing relationship with a firm. Such a request may be, but is not necessarily, a sign that opposing counsel's strategy will be to delay, delay, delay.
I will always agree to a request for a seven- or ten-day extension because I may want opposing counsel to return the favor later and because I know the judge will grant the extension over my objection anyhow, but when opposing counsel requests a thirty-day extension, that may be you first indicator that opposing counsel is a LFOP.
Cohen's first law of LFOP:
The longer the requested extension, the more likely it is that when opposing counsel finally files a response it will be a baseless motion to dismiss rather than an answer to the complaint. Probably a motion alleging your thirty-page complaint, complete with ten attachments, doesn't contain sufficient factual allegations to meet the Twombly/Iqbal plausibility standard.
2. Opposing counsel's answer lists inapplicable boilerplate affirmative defenses.
Many lawyers, particularly those in insurance defense firms, include a boilerplate list of affirmative defenses in every answer they file. I have even seen lawyers list contributory negligence as a defense in a breach of contract case. Including a defense where there is no factual basis for it clearly violates Rule 11. Gargin v. Morrell, 133 F.R.D. 504 (E.D. Mich. 1991). But it is common, and most judges allow lawyers to get away with it "because everyone does it" or "that is how it has always been done." Some state court judges did the same thing before being elevated to the bench, so filing a motion for sanctions may be a waste of time.
There is now a split of authority on whether Twombly/Iqbal standard applies to affirmative defenses, but at least one federal circuit has held that it does. GEOMC Co., Ltd. v. Calmare Therpeutics Incorporated, 918 F.3d 92 (2nd Cir. 2019). Even if it does not apply, an affirmative defense must be stated to give notice to a claimant, who can then use the discovery process to investigate more fully the factual basis supporting the defense. United States Welding, Inc. v. Tecsys, Inc., No. 14-cv-00778-REB-MEH, 2015 WL 3542702, at *2 (D. Colo. June 4, 2015). Thus, a motion to strike may be appropriate, but it may not get you far because the judge may rule that you can use the discovery process to ascertain the basis for the defenses.
A better approach, I think, is to file a reply to affirmative defenses under Rule 7 to highlight the lack of specificity and show that opposing counsel put little thought into their answer. Put differently, it's a way to show that court that opposing counsel is a LFOP.
In jurisdictions that require the parties to submit a proposed case management order, another approach is to include something like this in the proposed CMO:
"Defendant has listed an affirmative defense of failure to join an indispensable party without specifying the identity of the allegedly indispensable party. Plaintiff asks the Court to order Defendant to specify the allegedly indispensable party within seven days."
3. Opposing counsel engages in extensive written discovery when most facts are undisputed and known to both parties.
I believe written discovery is largely worthless. Almost every request is met with a long list of boilerplate objections followed by equivocal weasel language written by opposing counsel. Yes, some lawyers are legitimately concerned that if they don't engage in massive written discovery their client may later accuse them of malpractice, but in many cases they are just running up their bill and trying to impress their client with the massive volume of electronic paper they can generate.
In most cases both parties know the facts and many facts are undisputed. Mandatory disclosure of documents required by Rule 26 should ensure that counsel for both parties have nearly all of the relevant documents. I rarely engage in written discovery. The boilerplate objections and evasive responses almost always invite a motion to compel, but most state court judges don't want to be bothered with such disputes and you run the risk of being held responsible for the other party's attorney's fees if the judge gets it wrong.
I much prefer depositions where I can ask the witness follow up questions and opposing counsel must be silent, except to make objections.
4. Opposing counsel repeatedly makes speaking objections while defending a deposition.
F.R.C.P. 30(c)(2) (and its Colorado counterpart) provides:
An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).
I always bring a copy of that rule to any deposition and have, at times, handed a copy to opposing counsel on the record and made it a deposition exhibit.
The best solution to this behavior is, after opposing counsel is done, to look at the witness and say, "Now that your lawyer has completed their objection, let me repeat the question…"
5. Opposing counsel objects to pattern interrogatories approved by your state's supreme court as "irrelevant, unduly burdensome, vague, and not reasonably calculated to lead to the discovery of admissible evidence."
I've seen it happen, and I've seen judges let opposing counsel get away with it.
6. Opposing counsel produces thousands of pages of documents in response to a Request for Production without any index and responds to the request with, "See documents produced herewith."
This is poop at its finest. See, e.g., Graske v. Auto-Owners Ins. Co., 647 F.Supp.2d 1105 (D. Neb. 2009), in which the court held that in responding to interrogatories by producing documents the party "must specify the documents from which the responses to the interrogatories can be derived in sufficient detail to enable the interrogating party to locate the documents as readily as the responding party could." The court wrote, "It is not sufficient for a responding party to simply direct the interrogating party to a mass of business records. The court noted that "when voluminous documents are produced under Rule 33(d), they must be accompanied by indices to guide the interrogating party to the responsive documents. Citing, O'Connor v. Boeing N. Am., Inc., 185 F.R.D. 272, 278 (C.D.Cal.1999). The court held that the same rule applies to requests for production of documents. The court found that the defendant's production of more than 7,000 pages of documents was insufficient because they "were not accompanied by any indices or other tool to guide plaintiffs to the responsive documents" and wrote that "the fact that the documents can be electronically searched by key term is not sufficient to discharge defendant's duty to sufficiently identify the location of the relevant documents."
7. Opposing counsel objects that discovery requests are "premature."
This is usually poop. The rules require discovery responses within a specified period and specifically require litigants to supplement their responses when new information becomes available.
Generally, a discovery request is premature only if served prior to the time allowed by the applicable rule. Taylor v. Great Lakes Waste Servs., Not Reported in F.Supp.2d, 2007 WL 422036 (E.D. Mich. 2007). An objection that a request is premature may also be appropriate when the request seeks to force a litigant to provide information prior to the deadline to do so. For example, a request that asks for information about your expert's opinion prior to the deadline for your expert's report. McKellips v. Kumho Tire Co., Inc., 305 F.R.D. 655 (D. Kan. 2015).
But in most cases the claim that a discovery request is premature is poop.
8. Opposing counsel objects to a request for production because the parties are already under a duty to disclose all relevant documents.
I know, it sounds like the dumbest objection ever made, but I have seen it. Obviously, there would be no rule allowing requests for production if this argument had any validity. Courts have universally rejected it. A litigant is "entitled to individualized, complete responses to each of the requests, as numbered and identified in the requests, accompanied by production of each of the documents responsive to the request, regardless of whether the documents have already been produced." See, e.g., Louen v. Twedt, 236 F.R.D. 502 (E.D. Calif. 2006). This objection is pure poop.
9. Opposing counsel claims no duty to produce documents because you already have them.
Courts have universally rejected this argument as well. See, e.g., Walt Disney Co. v. DeFabiis, 168 F.R.D. 281 (C.D. Cal. 1996)(Defendant's responses were insufficient and Defendant was "required to produce documents he has in his possession, custody or control, regardless of whether he believes plaintiff already has those documents."); Beydoun Foods, Inc. v. 7-Eleven, Inc., Not Reported in F.Supp.2d2013 WL 5515348 (E.D. Mich. 2013)(Court rejected argument that Defendant had no duty to produce documents it believed Plaintiff already possessed, and imposed sanctions); Beach Mart, Inc. v. L&L Wings, Inc., 302 F.R.D. 396 (E.D.N.C. 2014)("The rule is not that a requesting party in a case must go out and find responsive documents. Rather, the rule is that even where a requesting party already has documents in its possession, or could otherwise access those documents, the disclosing party may not withhold those documents…).
This objection is poop for another reason. Opposing counsel has no way of knowing what documents you possess. If opposing counsel has supernature powers and has used them ascertain what documents you possess, opposing counsel should at least provide an affidavit establishing the foundation for their supernatural powers and how they were used to ascertain what documents you possess. See, C.R.C.P. 43(e).
10. Opposing counsel repeatedly accuses you of unethical or unprofessional conduct.
Goebbels wrote, "Accuse the other side of that which you are guilty."
11. Opposing counsel rarely responds to emails.
Some lawyers prefer phone calls to emails, and phone calls can be productive. Some judges even require phone calls where the law imposes a duty to confer regarding a motion. But a repeated refusal to put anything in writing despite requests for specific authority to justify a stated position often indicates opposing counsel knows there is no support for his/her position on an issue.
12. Opposing counsel repeatedly claims to have not received emails.
It is certainly possible that an email you send to opposing counsel ends up in his/her spam or junk folder. But such problems quickly come to light and are easily remedied. When opposing counsel repeatedly claims to have not received emails, even though you have not received any automated "undeliverable" messages, your poop threat level should move from yellow to orange. In some cases you may want to provide opposing counsel with an alternate email address if you have one and/or send emails that request a read response.
13. Opposing counsel never provides legal authority for any position.
Some lawyers take bold positions on issues, but never provide any authority to support those positions other than "Because our firm says so." I always email opposing counsel an invitation to provide legal authority for their position so I can understand it. If opposing counsel does not respond, I start to think I am dealing with a LFOP.
14. Opposing counsel repeatedly takes snippets from emails and depositions, and incorporates them in motions and responses, out of context to give the court a false impression.
This may not always be an ethical violation, but courts find it irritating. Robinson v. Gerritson, Not Reported in F.Supp.2d, 2002 WL 1052042 (N.D. Ill. 2002). See also, Minch Family LLLP v. Buffalo-Red River Watershed District, Not Reported in Fed. Supp., 2009 WL 10700939 (D. Minn. 2009)(Court denied motion to amend supported only by "Affidavit which purports to interweave a rag-tag collection of snippetsfrom depositions, agency meetings, notations, jottings at Hearings or from witness interviews, and the like, so as to infuse that unlikely pot-pourri with foundation."
The remedy for this is simple. Include the full email or other relevant portions of the deposition transcript in your response and paint opposing counsel as a lawyer that is intentionally misleading the court.
Although conventional wisdom holds that a lawyer defending a deposition should ask few, if any, questions at a deposition, I make it a point to listen for witness answers that may be taken out of context and used against my client later, and I often ask the witness questions when it is my turn so I can use the witness' answers to my questions when the deposing attorney submits a snippet out of context.
I don't hesitate to ask leading questions either. It's not my deposition, so I am cross-examining the witness and thus entitled to lead. There is no requirement in F.R.E. 611 that dictates a party cross-examining a friendly witness is precluded from using leading questions. Giter v. U.S., Not Reported in F.Supp.2d2009 WL 4730551 (M.D. Fla. 2009). It is well recognized that the Court may allow counsel to propound leading questions to his or her own witnesswhen such witness has been called as an adverse witness by opposing counsel. Stahl v. Sun Microsystems, Inc., 775 F.Supp 1397 (D. Colo. 1991). See also, Alpha Display Paging, Inc. v Motorola Communications and Electronics, Inc., 867 F.2d 1168 (8th Cir. 1989)(District court did not abuse its discretion in allowing Motorola to use leading questions during the cross-examination of friendly witness); Morvant v. Construction Aggregates Corp., 570 F.2d 626 (6th Cir. 1978)(Not error for the trial court to permit the defense to use leading questions when cross-examining its own employees, who had been called by plaintiff on direct examination as part of her case-in-chief)
15. Opposing counsel repeatedly blames his/her staff.
Everyone makes mistakes. Responsible lawyers own them. If opposing counsel repeatedly blames his/her staff for missed deadlines, failure to return calls, undisclosed documents, etc., that's a poop indicator.
16. Opposing counsel sends you an email (or leaves you a VM) asking your position on an anticipated motion to satisfy his/her duty to confer, then files the motion ten minutes later informing the court that you did not respond to his/her request to confer.
When you receive such an email or voice message, if you don't have time to respond immediately, promptly reply (by email) that you will respond within 48 hours so you have a record of it you can attach to your response to the motion.
I would like thank several firms for providing the inspiration for this article.. ...
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