Recent shenanigans by a particular opposing attorney made me think of a war story which just happens to illustrate Sleazy Attorney Technique no. 8.
When I first started practicing I had to be hit over the head with this technique a few times before I knew what was happening. I tend to assume the best of people until they give me reason not to, and the first few times this happened I wrote it off as a simple mistake until I finally realized what they were doing.
Here is the scenario. You represent the plaintiff in a breach of contract action, and the opposition is about to take the deposition of your client. You’re all sitting around the conference table ready to begin, and opposing counsel turns to you and says, “Before we go on the record, I don’t want to go through a whole deposition if we don’t have to, so I was just wondering if you got a chance to present our settlement offer to your client?”
There was no settlement offer, as the attorney well knows. His goal is to plant a seed of doubt in your client, hoping it will blossom into conflict. The client will wonder, “why isn’t my attorney communicating settlement offers to me? Is he trying to keep this case going?”
Another variation can occur at a settlement conference. I always fight to never have the parties in the same room, because the situation is just too ripe for abuse. But some mediators don’t know what they are doing, or just enjoy drama, and they insist on having a group session before the parties head off to their separate rooms. Again, with no settlement demand ever having been made,, opposing counsel will work into the conversation something like:
“I just want to make clear, that since we never received a response to our settlement offer of $150,000, and had to incur attorney fees coming to today’s conference, that offer is off the table.”
If unprepared for such a tactic, the client will become fixated on that number, feeling like the money has been lost.
Be on your toes whenever the opposing counsel is in a position to indirectly communicate with your client, such as at depositions and settlement conferences, or even in the hall following a hearing, where they talk to you for the benefit of your client. Some attorneys will apply the technique through their clients, instructing their client to contact your client to deliver the message.
So how do you protect against this sleazy attorney technique? Just explain the technique to your client, and tell them to expect it. Explain that you are required to present all settlement offers, no matter how absurd, and that you can get in trouble with the Bar if you fail to do so, so the client never needs to worry that you won’t communicate a settlement offer. So if opposing counsel ever claims otherwise, he is just employing this tactic.
Back to my war story; a funny example coming from a tragic situation. This attempt to drive a wedge between you and your client is not limited to phantom settlement offers. I represented a client who had been defrauded out of almost half a million dollars, and the con artist was represented by his attorney daughter. It was truly sad to watch this woman have to defend her con artist father, and you could see that she desperately wanted not to believe what had happened.
In any event, I guess the fruit doesn’t fall far from the tree as they say, because during my deposition of her father, she launched into one of the most extreme applications of this technique I have ever seen. Her father was evading all the questions so I had to keep pushing, and his daughter suddenly blurted out the following diatribe:
“Counsel, you told me at the beginning of this case that you were going to turn it into a cash cow, that you were going to churn the file and run up the attorney fees for your client, and I hoped you were just posturing, but I have never seen an attorney spend so much unnecessary time on a case just to get a big fee out of it.”
There was this moment of stunned silence, I turned and looked into my client’s eyes, and we both burst into almost uncontrollable laughter. What the attorney failed to realize or anticipate when she made up this whopper was that I was handling the case for a flat fee. If, indeed, I was spending a great deal of time on the case, then she had paid me a tremendous compliment, because whether I spent 100 or 500 hours on the case I was going to make the same amount.
Had I been representing the client on an hourly basis, the trick might have worked. I can imagine it would be hard for any client to believe that an attorney would engage in such theatrics to gain a tactical advantage. Make sure you educate your client on this possibility.