Staying above the fray means not getting messy

July 20, 2021

Chicago Daily Law Bulletin – July, 2021
by Jeffery J. Kroll
Jeffrey J. Kroll is a founding partner of Kaveny + Kroll LLC. He has achieved settlements and verdicts in a wide range of cases, from trucking accidents to medical malpractice to sports safety cases. He can be reached a jeffrey@kavenykroll.com.

My dad passed away in 2008, one month before Lily was born. I wish she could have met my dad. Lily is now at that stage where she is not afraid to engage in an argument and, at times, takes some pretty valid positions to support her point of view, a view typically angled toward additional time on TikTok.

Lily is a pistol, that is for sure. Of course, she often requires a silencer. Yet, she would have been no match for my dad in any argument.

My dad was a blue-collar truck driver. Not well educated. He was extremely difficult to argue with on pretty much any topic. Why? His canned response would be, “everyone knows that.” That was his argument. No basis nor any facts to support his sometimes-tenuous positions. Just “everyone knows that.”

I think back to my childhood when I would get into some kind of argument with someone and they would simply say, “I know you are, but what am I?” That was the battle cry for many of my friends back in the day. “I know you are, but what am I” can be applied to any argument. It has nothing to do with content and deflected any self-doubt my childhood friends may have had. Instead, like many arguments or canned responses, it deflects self-doubt onto one’s opponent.

Being involved in litigation for over three decades, you see every kind of character imaginable. Some of the nicest people and best friends I have ever made were opposing counsel. I have had the pleasure of representing numerous defense attorneys and their family members throughout my career. Yet, confrontation does rear its ugly head from time to time. Be it in a deposition, courtroom or the “paper tiger” hiding behind letters and emails, I have seen it all.

I am a big believer in civility. Unfortunately, when your opposing counsel is hurling a barrage of insults, or continuously objecting during a deposition, civility can be difficult to achieve. As the attorney taking the deposition, you need to retain control.

As the saying goes, “Never wrestle with a pig. You both get dirty, and the pig enjoys it.” In other words, do not take the bait. On a few occasions, I have had to stop the deposition and place a phone call to the motion judge and ask the court reporter to read back the insults they marked so the judge could hear exactly what transpired. On two separate occasions, the remainder of the deposition took place in the judge’s courtroom. Both times, no more talking objections.

Similarly, instruct the court reporter to not go off the record unless instructed by you, the individual taking the deposition. It is your deposition. Make a record and indicate on the record that “attorney Smith has interrupted the deposition to cast personal aspersions toward myself and my client.” Before calling off the remainder of the deposition, spend some time researching similar matters in your jurisdiction to confirm you are correct in doing so.

While in court, one thing that drives a judge crazy is addressing your comments to opposing counsel. Always address your comments to the court. Also, what mothers and grade school teachers say is true: Let the other person finish before speaking. Motion and trial judges really dislike when attorneys interrupt each other and the court as well. The attorney must be cognizant to let the judge finish his or her commentary before you open your mouth. It should go without saying but I will say it, if you are winning, shut up.

I remember, back in the day, a concept of “liquid courage.” It may have led to some good ol’ fashion butt kicking, but the stories are still memorable. There are attorneys that relish in keyboard courage. Essentially, the “tough guy” image when sending letters, emails or motions. Once again, do not take the bait. Pick up the phone and engage in a dialogue. If that does not work, make a record so you have it for the appropriate motion. I truly believe this issue will get resolved a great deal of the time. It has not been beneath me to call the partner on the case and let them know what type of behavior the associate has engaged in. Nine times out of 10, the matter is resolved.

Parenting children is difficult. So is practicing law — sometimes it seems the same. I really wish we could get along. Inevitably, the court will get tired of all squalling. The court will take a dim view of everyone in the case, even including the attorney that is acting professionally. Stay above the fray. Of course, “everyone knows that.”