Hi, and thanks for joining me today. My name is Mike Brusca. I'm a partner at Davis and Brusca. I practice here in New Jersey. Over in Pennsylvania and some other jurisdictions periodically. So the title of today's discussion is Skills for Dealing with Difficult Defense Attorneys. I've been practicing law for 20 years, and I and when I have been practicing for a little while, I took a Myers-Briggs test. If you don't know what that is, Myers-Briggs is a personality evaluator. They basically ask you a series of questions and then you get a four letter code when you're done. And then you can take this four letter code and you can put it in the Google and you can get suggested careers for people with that four letter code. So I am a enfj at the time, and when I took it, I was interested to know, well, what does that mean for me? And I looked it up and it says, People that are enfj are harmonizers, they are the harmonizers. And so it lists out some suggested career paths for Enfj. It included things like teacher or a motivational speaker. Therapist was another one, I believe. And then in the other column it said careers you should avoid. And it said, if there's one career out of all others, you should avoid It is litigation because of the conflict. So I've had to navigate this profession for, you know, two decades with this personality type. And I've learned different tools that I can be myself and not have to compromise who I am or my values and still accomplish a good job for my clients. I'm also in a small bar. I practice nursing home neglect and abuse cases, and that's pretty much all I've done for the last 13 years or so, 12, 13 years since 2009. And that's really where I've had to use a lot of these tools and tactics. I will say, generally speaking, most of my bar, I'm very cordial and friendly with, although not everybody is amenable to that kind of relationship. So but I like to believe I have a good reputation in this field and in particular within my state for it and certainly my reputation for being a gentleman and being fair and honest as well, which is very important to me. At the end of the day, that's what we trade on is our reputation. So we're going to talk about some things I've learned. Now, listen, it's not my job to tell anyone how to practice law or take depositions or litigate their cases. Everybody's got their own style. This is just how I do it. And a lot of it is learned from mistakes I've made, which I'm certainly candid about, that I have made mistakes and how I've learned from them. And so if I can give somebody some ideas or some other strategies that maybe hadn't occurred to them, you're getting this from an enfj the harmonizer. All right. I thought that we could subtitle this How Parenting kids help me manage difficult people, because a lot of the strategies that I use are things that I learned from having kids. And don't say that difficult people are like children. I'm not saying that. I'm saying that a lot of the skills that I had to use in dealing with my children applied to how I was dealing with people who are just difficult or obstinate. If you have kids, you may be able to appreciate the fact that kids can be difficult and obstinate and unpleasant at times. And so there are strategies for dealing with that, right? And so a lot of these strategies work equally well with adults. And so that was my suggested subtitle for this topic. So here's a roadmap of what we're going to chat about here today. First, we're going to talk about lesson learned. I'm going to discuss style counts, some basic kid psychology, and then crafting consequences and strategies in terms of both litigation at large and specifically depositions. Okay. So lesson learned. First of all, I want to say I was brought up. Right. All right. My when I was a baby lawyer, I worked for a large law firm for about almost a year. And then I shifted into the JAG Corps and I served in the JAG Corps for over five years. And and. I also served as a special assistant US Attorney Sauza, where I would do misdemeanor cases that occurred on the military base for civilians because civilians aren't subject to the Uniform Code of Military Justice. And so when they misbehave on a military base, those are federal crimes. And I'd go down to federal court and I would do all the misdemeanors every two weeks. I put on a suit and tie and do it that way. I tried a lot of cases in both the JAG Corps and in federal court. Now, if you've practiced in federal court, you may be familiar with the fact that it is a far more it's more formal. And for example, I remember I was trying one case and now two and I had tried cases in front of there were three different magistrates would try cases in front of and I had a good reputation with them because I came in prepared and ready to try cases. And I started out one of my questions with defense makes a big deal about and the magistrate put his hand up and stopped me right there and said, Mr. Bruce could please just ask your questions. You save the commentary. So it's a different environment and certainly one that doesn't suffer a misbehaving very much. The JAG Corps was very much the same. The JAG Corps was very much the same, if you're not familiar much with that other than perhaps a TV show, it's not a large group of people that do it. And the way the Air Force worked is you're stationed at a place for between 2 and 4 years. You deploy for six months. You are seeing the same people over and over again. And so for these reasons, we were taught to be collegial colleagues. That is, even though you both had a job to do and you were in direct, you were direct adversaries, you needed to be collegial and you needed to be polite. Now you should go at it like cats and dogs. I mean, candidly, they showed us this video when I was in JAG school. Now I'm a Gen Xer. So if you're not familiar with these two fellas here, this is Wiley Coyote and the sheepdog. Okay. So this is a great episode. These two guys, they show up for work together. Look at them. They're punching in, right? They walked in together and they punch in. And then Wiley Coyote is always trying to take the sheep, and the sheep dog is always ending and thwarting his attempts with violence. Also a hallmark of Gen X TV and with thrash Wiley Coyote. And they stop and have lunch together. Right. It was a difficult morning here. You want some coffee? And then they go home as friends, right? And that's what we were taught to do. That's how we were taught to litigate and that's how we were taught to behave with each other. Now, I came out of the service and I started working for this law firm. And go in to do my first deposition. Right. And I was shocked and appalled at the same time. It was not at all like Wiley Coyote and the sheepdog. This guy was rude. I mean, just unbelievably rude. He was rude before we even started. Like I went into the room and I started to, you know, make conversation with him. And he was just dismissive and rude, like, how dare I, you know, take up his time. He made personal comments. He was overly aggressive, instructing the witness not to answer inappropriately. And I have to say candidly, I did not know what to do. I was totally frozen at times because I had never come up against this. I would I can't imagine that somebody would instruct a witness not to answer outside of the court rules. It was shocking to me. I was so angry. And in the middle of the table there was this pen. It was just sitting there. I'm at this conference table and there's this pen, and I keep finding my eyes drawn to it. And I kept getting a flashback of that scene from Casino where Joe Pesci kills this man with a pen just stabbing him over and over in the neck with the pen. And I just kept thinking to this attorney, you're in so much danger right now. You are like a toddler on an edge of a cliff right now. You're in so much danger. If you knew what was going through my brain and after that. I learned my lesson of what I could expect. And I will say I did come up on it now. It doesn't happen that often now. I certainly know how to handle myself now. In fact, one of my new attorneys recently was in on a deposition with a difficult defense lawyer. And he said to me afterwards, that's like a masterclass on how to handle someone who's extremely obstreperous. And you can do it deftly and in a dignified way and at the same time being effective. And thus began my journey into the realm of uncivil civil law. So to me, style counts, right? My goal is to kill them with kindness and both how I litigate my cases and in my style of depositions, I find my I just had a someone a prior defense counsel referred me a case and said I hated doing depositions with you because to my mind, people just open up and say things. And my goal was always to take difficulty from either a witness or more likely, a defense lawyer and handle it competently and politely. You'll see this phrase in a lot of my transcripts. I appreciate that, ma'am, but my question is a little different. And I may say that over and over and over and over until I get the answer that's appropriate for the question that I asked. So why would you do this? I mean, number one, I'm a professional and I believe in the profession of the law. And I believe in treating both witnesses and lawyers as a professional. For example, if I'm in a deposition and it's hot, I ask the witness, like, do you mind if I take my coat off? I mean, to me, there, there. They don't want to be there. And ultimately, while they may be a witness to the case, this is a I'm a professional and so I'm going to treat them like professionals as well. And let life just better, isn't it? I mean, let's be frank. The practice of law is a hard job. It's not a nice job a lot of the time. I mean, when I try explaining what I do to someone who doesn't understand, I wade through misery and death. I will discuss death with people all the time. It's a hard job and it's adversarial nature. So it's difficult, right? So life is more pleasant when I'm not fighting unnecessary battles on the side that have no bearing on getting my job done. I'm also, as a harmonizer, a relationship builder. I am interested in building relationships with defense lawyers. I am interested in building relationships with adjusters. When they call, I will take their calls all the time. I find too, when I have good relationships with defense lawyers, it helps in being certain that my case is getting written up correctly. So if you're not. Aware of how the process works. A defense lawyer gets a case and then writes it up, either you know, for value or whether they should settle or whatever. And to me, those initial letters are like writing something in cement. The longer your case goes, the harder it is to change those evaluations. And so I want to build relationships. Now, I will tell you, old school defense lawyers will call you on the phone and want to discuss the case early. And I'm always happy to take those calls and have relationships with these people so I can have an honest discussion about my case. I am not chest pounder. I understand there's difficulties with cases. Everything has defenses. I'm aware of that. But if you have a good reputation, which I believe I do, then I can have honest discussions about my cases. And therefore, if I come out of the gate with a very high demand, they understand that I take this case seriously, right? Not that I don't take my other cases seriously, but this one is different than perhaps a similar case that we've handled in the past. And I want to be sure it gets written up correctly in the beginning. Also, you know, much like in the JAG Corps, you may be you may you don't want to give someone the business because they may be your superior at the next base or you may be stationed with them later. Um, and in the same vein, you know, you know, burn down the house litigation, you just may probably not be the only case you have with this person. And you know, do you want to start off the next one? Uh, like that. And I don't generally I don't want that. And so, like I said earlier, my bar is very small. So these cases are not the only cases I'm going to have with this person. I'm very well aware of that fact. And so. Ultimately, I look at each interaction as a chance to build a relationship that could last quite some time. I'm not retiring this year, so if you are, maybe it's a little different. Also, you get the opportunity to perhaps mentor. A more junior attorney. I find this too. Mentorship is something in the law that is just not there in a lot of places anymore. I feel like I believe in it in my law firm, but a lot of law firms not so much, which I think is unfortunate. I remember I had a case with a young attorney, and when she went to do some depositions of of of my family, she used all my instructions that I had used in a deposition which told me that no one was helping her. Right. No. I mean, unless my instructions were so incredibly awesome. But nobody was helping this this poor young attorney. So, I mean, at the end of the day, it may be a chance to do that. And look, let's be honest, if you're not mentored, sometimes people don't know how to handle adversarial relationships when they're young in particular. And so, you know, much like if you I live, you know, near the woods in the northeast, so we have a pit vipers, a rattlesnakes and baby rattlesnakes are the are the most dangerous because they don't know how to meter their poison. And in the same way, a new attorney can be the exact same way. Right. They don't understand this. And I've had some young associates came to work for me and I said, listen, you know, you have to be cordial with this person. They're all fired up about something. I was like, relax, relax. Right? They're doing their job. And of course, there's going to come a day where you're going to need an extension and want to be able to get that right. And I don't want to have to, you know, rely on someone that I've had a very bad relationship with and ask them for something. So to that extent, someday I need the extension. All right. So basic parenting in psychology or basic parenting psychology right now. If you got kids, you probably been in this moment where you look at your kid and you think to yourself, What is wrong with you? I mean, now toddlers and babies are the worst because they can't tell you. Obviously, when they get older, they can tell you. But at the end of the day, like trying to find out why they're so upset. Now, two and under is easy. Their diapers wet, they're hungry. They want to be picked up or they're tired. That's really the only, only possibilities. But once they get older, now you got psychology like 2 to 5. It's like, oh, God, you know, are they being manipulative? I don't know. But you got to try to figure out what are the root cause is right. Because if you understand what a person so bent out of shape about, I can use it to my advantage. And it also allows me to keep my cool. There is a book, The Four Agreements by this guy, Paulo Coelho. You may have read it, but I mean, one of the four points is you shouldn't take anything personally. That's very difficult. I'll be very candid about that. But if I understand what a person is so bent out of shape about, then it is easier for me to keep my cool and it is easier not to take it personally. Right. And certainly you'll find too, that some people, especially if you have other colleagues on your on your side. Generally speaking, I'm not the only one that has difficulty with certain people. So that also allows me to keep my cool in those situations, right? Now, I found this sometimes. And in particular, if you're in a niche practice, sometimes attorneys get really bent on shape because they're afraid. They don't know what they're doing right? They may not understand your field. Um, and so that puts a pressure on them because nobody wants to look stupid, right? Um, they don't want to write the file up. Or if they didn't write the file up correctly, that's difficult because think about that. I was not a defense lawyer in this capacity. So to my mind, I can envision that as difficult to go to a carrier when you've written up a case and say, Hey, listen, you know, I didn't do it right or I screwed it up or I got these things wrong. Like, that's a hard conversation for anyone to have, Right? And I appreciate that. So if there comes a point in time where that doesn't happen, that can trigger like, bad behaviors, Right? And nobody likes losing. That's the thing about litigation is it's if you go to trial, it's a zero sum game. So somebody's going to win and somebody's going to lose and, you know, candidly, that's why we settle cases. But ultimately, that fear is always floating around out there. If you're doing this type of work. Right, they could be pushing the boundaries. So the other thing, too, about being on the plaintiff's side, you get a lot of benefits. One of them is you get to pick your cases. Right. That's a huge benefit, right? I get to pick my cases and the defendant doesn't get to pick their cases. When I was in the JAG Corps and I was a prosecutor, um, you know, I didn't I didn't recommend cases where you didn't have the evidence. If you didn't have the evidence, you don't do the case. Right. Um, and it's similar on the plaintiff's side. People come to see me. I'm not compelled to take their case now when I was on the defense side. Right. I don't get to pick my clients, at least on the in the JAG Corps. I didn't I was assigned as a detailed defense counsel cases. And on the other side, insurance carrier picks defense law firm. And that's the case they got right. And this might be their only defense. If they put up enough difficulty, that might be all they've got, Right. They might be seeing how am I going to react if they say no? There's a famous video out there and I don't have it in here, but I'm sure you can find it where defense lawyer was caught on video basically saying, I just object to everything at first and no one ever follows up with a motion. And of course, that guy got in trouble both professionally with the bar and with his firm because, you know, he was basically saying out loud what he's not supposed to say out loud, but this could be all they got, right? They want to see how you're going to react. Are you going to are you going to push back or are you just going to sit there and be timid about it? Right. Um, you I see this more as young attorneys. I mean, when I was in the JAG Corps, actually tried cases. So when I came out, I remember one of the first cases I handled, the guy was telling me, I was like, Well, we'll just try the case. And I mean, to me, that was that. That's how cases ended. I was like, okay, well, we'll try the case. I mean, I didn't view it as a threat. I just viewed it as a natural conclusion to a case. Um. But and I did get kind of weird things happen to me when I was newer. I remember being in one deposition where there were three defendants and they were making these, like, objections. And Mark the record and and, you know, save this page. And and then the others were like, Yeah, yeah, join. They're all like old school attorneys. I'm sitting there like, I don't see what you're doing. But, you know, I didn't think viewed it as an attempt to just kind of be intimidating. But I think this happens with women, too. I hate saying that, but I mean, seriously, if there's any women out there listening to this, I'm sure if you started out practicing law when you were young, there was some point in time where you came with your wheelie bag into the conference room. And so so you can go set up your your steno machine at the end of the table and tell them like, hey, listen, I'm a lawyer, buddy. Um, and so I've seen this happen before. Um, listen, it just happens with young attorneys. I feel like it's almost like a hazing ritual. You got to go through a lot of times to the defense attorneys are just too busy. Um. You know much. They much like health care professionals during Covid. I mean, it's just they're short staffed. They got a lot of files to handle. And don't take it personally if the one that is important to me isn't the one that's important to them in that minute. And that can be now, of course, for health care professionals. We put a sign says a hero lives here. Don't see anyone doing that for lawyers, but hey, it might happen. Who knows? But they just could be too busy. Maybe they're not ignoring my call. Maybe they're just too busy. Right. That can happen too. Or this person might be a. Don't know what I can say on Quimby, her platform, but insert your own expletive there. I mean, there are people and you may have somebody there just broken, like there's something wrong with them. I mean, there is a basic human instinct for society that is, we want to have society. If everyone was completely combative and a jerk like our species would have gone extinct millennia ago. It's a basic human instinct, and these people don't seem to have it, or there's something in them that's just broken or wrong. Like they like fighting with people. And you sit there and you're like, Oh my Lord. Like, what is wrong with you? Like oppositional defiance disorder, right? It's you may have come across these folks. They exist. And if you have to deal with them, I apologize. But we're going to talk about some things you might be able to do, at least some things I do when I do come up across these people because this happened. So here's some consequences and strategies that I've kind of I've worked on. Like I said, a lot of these are I kind of walked out of situations that I wish I would have handled that differently. And that's how I learned. Typically, I'm not afraid to say that. I mean, there's things where I walked out of there and I was like, that was a mistake in particular litigation. I mean, it can just bring out the worst in people. My daughter told me she wanted to be a lawyer, and I was like, Well, honey, you know, there's an easier way to make a living. Um, but it can really bring out the worst in people. I mean, look, it's adversarial by nature, right? I got a position. They got a position. Right. And someone's going to lose. I mean, if you go to trial, like I said, it's a zero sum game. Somebody's going to lose. You got lots of money involved because that always that always elevates the spirit of people, right? Throwing money on it. People's reputations are involved. There's a human instinct for society, like I said, and that involves your reputation. And people don't like that being threatened. The reality is, too, like most people don't like fighting. I find that even though people are litigators. Generally speaking, I find that I do have very cordial relationships, like most people don't like fighting. I mean, if people like fighting with each other, like I said, we wouldn't exist as a species very long. Most people don't like fighting. In fact, they did studies in World War One with the bayonet charge they were found that was more likely for people to turn their rifles around and use them as a club as opposed to actually sticking someone with a knife. Like it's not in our nature to be adversarial and combative like that. And a lot of the practice of law is not face to face, especially during Covid, But even before then, people would send emails and letters, which I hate email and I generally don't send letters, but for confirming letters, I am far more likely to call an attorney and want to talk to them because A it helps build relationships. B How many letters have you ever gotten? Are passive aggressive letters? Just come out and say it or be a jerk about it, right? If you're not standing there on the phone with someone, it's much easier to behave in that way if it's just you're writing it and clicking send. So this, this, these this combination is intersection of these six rows can cause like really unpleasant behavior. No, but like your kids, attorneys like, typically rise to the occasion, right? Give people the benefit of the doubt all the time. Right. Give them the benefit of the doubt. Don't want to develop hypertension. So, I mean, ultimately, my first instinct isn't this person's a broken jerk. It's just, okay, let's figure out what's going on and usually pick up the phone. And I'm inclined to do that. Like when I file a serious motion. I'm serious. I mean, some of these dispositive. I will call the defense lawyer and let them know. Right. I'll talk about this briefly later. But I'm, you know, I think receiving it dispositive motion without any kind of notice is bad for him, Right? It's just bad form. If I get a motion to dismiss, I would expect to have gotten a call first about that. But that would bother me if I get it. So with litigation, you know, much like my kids, I try to confront bad behaviors directly. Like I said, I will pick up the phone and call somebody. I don't I don't want to just fire back some email. Right. Keeping in mind that once it's written down, it never goes away. But ultimately, especially if I'm angry, mean, if I'm going to send an email, I will run it past people first before I send it. And it's funny because my one buddy calls me like the email therapist because he always sends his to me first to read before he sends them out. Because, you know, listen, if you're angry, you may say something you wish you hadn't said, especially if you're going to write it down. I give out my cell phone number to defense lawyers. I think it helps foster a good relationship. It's far more personal than just call my office line. You could do that. They have that. Some do call me on that. But a lot of times I'll give my cell phone number, right? It's a different type of gesture, even though it's exactly the same thing. And like I said, I do this because email, it's a poor tool for communication. Like I teach my children, I say, ask them hypothetically. I'm like, What's the difference if you say, I would like to go to the movies today, what do you think? And they say, whatever or whatever, right? Same word, two totally different tones. That makes all the difference. But email obviously doesn't communicate that. So I try to avoid email, especially if it's contentious, because at the end of the day, I don't want to miscommunicate something or I don't and I might be totally misreading something, so I want to be sure I have it right. You know, I teach my kids like do wrongs don't make it right. Just because someone misbehaves doesn't mean you should misbehave, even though sometimes there's problems I believe are best solved through violence. At the end of the day, two wrongs don't make a right. I see this in particular frivolous motions. Listen to my mind. Frivolous motions aren't just frivolous to me, they're frivolous to the court as well. And. And it also tells me I have the upper hand. I mean, if someone's filing these garbage motions, it's kind of like you're really telling me everything I need to know. Like you don't have much confidence in your case if this is the kind of nonsense you're going to file. I mean, ultimately, some poor clerk has to go through all this stuff. So when I respond to frivolous motions, it's now, I will say this generally speaking, I write in a very almost like Ernest Hemingway. I cut out anything that's unnecessary in the service. When I served as a judge advocate, we learned to do this. You only the essential facts, only the essential language. Be very direct, lots of whitespace, active voice. But when I have to deal with these, I'm very, very measured and I pay them a short shrift because that's what they deserve, right? I mean, ultimately, if you get some garbage motion and you know, sometimes I'll point out the absurdity in it, seriously, all my experts, they're all in that opinion like, really, you should borrow all my experts. I mean, come on. It's obviously grasping at straws, right? And so when you get those kind of motions, I point those things out to the clerk and try to make their job easy. Right. These are frivolous motions. Don't say it in those words, but I do it in this way because ultimately I'm showing the court what it is and I'm making the clerk's job easier. I teach my kids. Pick your battles. This is the hill you really want to die on. I try to be as flexible and reasonable as I can. I really try to avoid knee jerk responses if I get something in the mail that makes me angry, which consequently is why I don't read email at night or look at letters right before I leave for the day. Um. You know, I give it some time and some thought, right? And then I ask myself, like, how do I use this situation? Right? Is this is what I want to do right now, Really advancing the ball. Right. Is filing this motion really is going to take time and effort. And is it really helpful? Right. And then I think sometimes when I get that stuff that makes me angry in motions or letters like, can I use this to my advantage? Because in the end, all right, I love the Roman Stoics. And one of their principles is it's my judgment on something that makes it good or bad. Otherwise life just happens, right? They say Stoics. What it means today is not what it meant back then. It wasn't that they just didn't feel anything. It's that they tried to be as impassioned and looked at things as impassionedly as possible. Because ultimately. Can they use this situation to their advantage? But they knew that it was their judgment that made something good or bad. That's my judgment. I try to do that with these situations in the law. Like I think about what they've done, like they filed this motion and I think like, okay, let's take a look at it from a dispassionate point of view, right? An objective point of view. And sometimes I find I can actually use things or they actually help me and they've buried themselves in a difficult position. Right. And avoid those knee jerk responses. I teach my kids sometimes you got to go to the parent or the teacher. Sometimes you got to go to the judge. To me, that is my last resort. I don't like doing that, especially with discovery issues. Judges don't like that. I really. And sometimes they they'll resolve it. They'll just say, listen, go in that room over there with your defense counsel and see what you can work out. And I try to do that before I got a card, all my stuff down the court. I try to sort it out as best I can without involving the judge. And sometimes it means it makes me actually sharpen my list of of documents I want because I'll think, do I really need these? Do I really need these? Do I really need these? And then it forces me to focus on what is really essential for that particular claim. It shows I'm a big kid, right? I'm above that kind of nonsensical, child like behavior. I mean, I've actually written I apologize. I have to request the court's assistance on this matter. I have tried to work it out with defense counsel and we'll talk about this a little later. But I will set a track record for that kind of motion. That is, I'm going to have emails or letters and documented phone calls that have tried to work this out amongst ourselves, because I think the court appreciates that when you've been a professional and if you can show a track record of being a professional and handling it as a professional, then it will ultimately help me if I've got to go to the parent or teacher. All right? And of course, you know, you want to use reinforcement when your kids. I follow up conversations in writing when necessary. You know, some people I have trust with them, but it is helpful to have a record of a call. Certainly follow up conversations in writing. If, if, if I need to confirm a point and then I will do that. Um, not all my conversations because they don't all require it, but certainly an important one is going to be followed up in writing. And I write my emails like it's going to be exhibit A attachment to a motion someday. And I learned that, you know, early on in my career I found emails make excellent attachments. And so I expect my emails going to be an attachment at some point in time. And so in that vein, my emails are very short, they're very friendly. I start with the first name. I always end with thanks, and in this way I'm showing the court that I am a professional, that I tried to work this out and these are the steps I took in order to deal with the issue that I've been arguing about. Right. Now, this is a big one with your kids. You got to do what you say. Mean if you got kids, you've probably seen this at some point in time. Some parent says their kid, listen, if you don't if you do that again, we're leaving. And I sit there and I think I know you're not leaving and that kid's brain is bigger than mine. So I'm quite sure she knows you're not leaving, right? To me, it's the same with litigation. You have to do what you say. I tell people, even if it's, you know, a pain in the behind, I am going to file the motion. If I threaten, I'm going to do something. I do it because if I threaten it and then I don't do it, they're not stupid. They know that I'll just say things. And I also find that this changes the tenor of things later. Like I recently had a whole host of instructions not to answer, which was totally inappropriate, and I filed a motion to bring the witness back. And I don't understand the court's ruling, but they said, well, no, you have to do written questions. Whatever the next deposition was with one of my attorneys. And it went much smoother because they knew I will file the motion and someday you're going to get in front of a judge. It's going to come down on you for doing that because you're giving instructions not to answer that are totally inappropriate. Right now. I'll talk about this a little bit more in depositions, but I'm more likely to file the motion than to call the judge in the moment, namely because. I just I envision that the judge is not really interested in this and is disappointed that this is having to happen and it's going to look for an expeditious way to handle this that may not be advantageous to me. So I would rather get my ducks in a row and lay it all out in black and white and file the motion. Now, of course, I suppose opinions will change on this, but I would much prefer to file a short motion where I have laid out all the facts and all the instructions. But that's just me and and some defense counsel. I don't know what they're going to say in there. Um, I don't know what they're going to say. And the judge isn't going to have the record in front of him probably or prior order. If there's a prior order. I want to be able to cite to that order and I won't have to go run it through my my electronic folders to go find things in order to get the judge on the phone and want to stop the deposition for two hours while I argue over questions. So I'm more inclined to handle it, uh, with a motion. Okay. Now he's like your kids. You gotta address bad behavior promptly, right? Um, from my perspective, if I'm dealing with someone and things go are not good in the beginning, I start right away on it. I don't want to argue with this person. I will start using my toolkit on how to handle this situation right away. Mean if you start getting if I start getting pushed back on, I get pushed back on publicly available documents sometimes. And I'm happy to file a motion to compel publicly available documents because then the court looks at the defense lawyer and says, these are publicly available, available documents. What conceivable universe? And then I explained to the court, because the court will say to me, well, why? Why are you getting them from them? And I say, because when I go get them, they won't agree to the authenticity of them. Right? And so in this instance, the defense lawyer is going to look foolish defending an objection to publicly available documents, especially when it's because they won't agree to the authenticity of these documents. So in this way, I do that very early on my document requests because I start to build a track record not only with this case, but with this judge in particular, because ultimately I got to believe a judge in front of them for the third time on a motion to compel. They're going to say, come on, counsel, what are you doing right? You're being obstreperous. Um, and it clogs their docket. It just clogs their docket. So I address this bad behavior promptly. All right. Sometimes, you know. You know, because like I said, I'm a Gen Xer, I'm a proud Gen Xer, right? Am self-reliant. Um, but yeah, we were more aligned corporal punishment than timeouts. But, you know, we didn't use corporal punishment on my kids and they probably turned out better than I did. So I can't, I can't fault that. But at any rate, it's the last resort for me. Don't go right to sanctions. I feel like if I go right to sanctions early on, it's hard to take me seriously. Right. Um, you know, in New Jersey, there are steps you got to file a motion to compel first, then then you can go to a motion to strike their answer. But I lay it out that this. They're prejudicing my case, right? And I show how they're prejudicing my case because it's important for the court to understand that this isn't a minor thing. We're not like I'm not picking out some random issue and then a document or deposition that I want. I show how this is prejudicing my case, like I'm trying to get my job done on my side. And the only thing preventing me from doing my job is nonsense from another attorney. Right. And to be prepared to defend myself, like I got to have clean hands, right? Because, you know, my daughter is very good at this misdirection. You know, you say, well, you didn't take the compost out. Yeah, well, you know, Henry, you know, my brother didn't do X, and I'm like, Oh, Lord, you know, But I see it because I'm a lawyer, right? She's very good arguing person. But at the end of the day, I got to be prepared to defend, defend myself to the court. I got to have clean hands. Okay. Now with depositions. So. It's a unique process when you think about it. I mean, where else other than government investigations or testifying before Congress or do you have these? They're not even discussions like it's not a conversation. I'm going to question you and you're under oath and you're going to tell me what I want to know. It's this weird tool we use that we don't have it anywhere in our society. It's not like cavemen were deposing each other because it's a good way to communicate, right? So we have this way of of getting information that is confrontational by nature. And it has to be right. It has to be. Um, I find too, sometimes that people don't necessarily appreciate the danger until they're in the deposition. Now, like I said, I'm in a specialized field and I and I take depositions for a few reasons. Like, number one, I don't really need to know anything. I mean, I already know everything I need to know before I file my lawsuit. I got expert reports and I've reviewed their corporate documents that are publicly available. I pretty much know everything I need to know. The lawyer gets a stack of medical records and, you know, my discovery responses, and they got to go through all that. And sometimes they may not appreciate the danger until they're in the deposition because I know where it is. They may not. And so, you know, that makes people uncomfortable sometimes, right? Or maybe their witness isn't prepared very well. That happens, too, sometimes. And so depositions, they can be intense. You can go on Google, you can literally you can find in heated deposition or intense depositions, Oh, my lord. There's this one from Texas where they're calling each other boy and fighting and mean. It really can bring out the worst in people. So I need all my parenting skills when I go into there. Number one, you don't have video on, but I'm a bow tie wearer and it's a nice distraction. And what thing what bad thing could come from a guy in a bow tie, Right? I'm only half joking with this slide. It does seem to work. I remember one time I had a deposition with these two defense lawyers and I was at a different firm. My associate at the time said, Listen, they're rough. I said, All right, well, we'll go in there and had my nice seersucker suit and my bow tie. I came in there and I had to pose this witness before. And because I'm not a jerk, I actually had a decent rapport with her even though she knew what was coming and she actually put her head down when I walked in, said, Oh, I saw you in the lobby. I was hoping it wasn't going to be You didn't get any objections from those defense lawyers. It was a bow tie. I don't know. Uh, of course, there's this, uh, this tool is much, much easier to use. So recording depositions, you know, people tell you, do this when your kid throws temper tantrums, get out your phone and record them and then show the kid later. And they're going to be sometimes completely appalled at their behavior. Um, and you can do this with defense lawyers to record their tantrums. Uh, there's a famous quote. A picture is worth 10,000 words. I would say a video is worth 100,000 words. Um, and of course, prior to Covid, this was a much more expensive prospect. But now with Zoom, it's much cheaper to record your depositions. Of course, I'm not going to be a jerk, but I'm assuming that, you know, you're not going to be a jerk either. Obviously, you don't want to record yourself being a jerk, but recording a defense attorney and certainly if they understand the deposition is on video, sometimes they're inclined to behave better. Um, show superior knowledge. You can do this with your kids sometimes, and it definitely works with depositions, especially if you're in a niche field or even if you're not in a niche field, like showing that I'm a subject matter expert. So. There's a lot of technical aspects with nursing home litigation, mainly due to the fact that they're regulated by the Centers for Medicare and Medicaid Services, CMS. And there's a lot of data out there, and there's all these reportable documents and data. And candidly, you know, some of the a lot of the defense bar didn't know what they were. So when I would get if I got, you know, a difficulty in a deposition, I just shifted gears to something that I knew they knew nothing about. And then look at them like, Oh, you don't have any more objections. So, for example, I was getting pushback in one deposition early. I mean, these people were complaining about my instructions and my and my description of the plaintiff's allegations. I couldn't even get through that. And I went right to a document called a Cost Report, which is an esoteric nursing home document. And they had nothing to say about it. And so what happens is, I find is that the witnesses, they they know that I know their job as well as they do. And so in this way, if I shift gears to that, well, it's just two people having a conversation and the lawyer is getting in the way of that, the defense lawyer. And that's a tool I've used many, many times, especially when I was younger. I will say this too. If in order to do that, it's important to use the correct technical terms, and if that requires discussion with your experts, then I would suggest doing that. Like, for example, there's federal regulations governing nursing homes. It's 42 CFR 43.1 ET seq. Now, if I'm in a deposition and I say to the director of nursing, according to 42 CFR 481.25 D subsection I, he or she is going to look at me like, What are you talking about? They call them tags. Tag So to this. So I talk about the regulations in terms of tags. I speak their language and like with a nurse, with a person who is incontinent of urine a lot. Right. They're called a heavy wetter. And I discuss them in terms of a heavy wetter. So using their tower analogy and words that the witness understands don't care about the lawyer, it's what the witness understands. Then I can make that bridge with a witness because I am looking to have a rapport with the witness defense lawyer. You know, I'm not interested in what they have to say. Okay. Right. Sometimes it's helpful with my kids to write down my expectations, and I can do the same thing in deposition. Now, I am not the first attorney to have difficulty in depositions. And after you do a couple of them, you learn what are the sticking points you learned, What are the difficulties? You know, for example, when I had a corporate designee, if you've not done these, it's a federal rule of 36. There's generally a state corollary. This is where the defendant has to put someone up to speak on behalf of the corporation and bind the corporation with their answers. So it can be a very powerful deposition. Now, in order to make sure that there are adequately prepared for the deposition, I send them a list of the topics I want them to talk about. And so you have to do this with a reasonable specificity. And sometimes I would get objection because these can be powerful depositions. And so sometimes I get objections like, well, that specific topic isn't specifically listed on this specific corporate designee form, right? And I would have the case law out there. The New Jersey court glory to federal citing federal case law saying you're not confined to the four corners of the document as long as it's reasonably related to one of the topics you've listed. Because that would be stupid, wouldn't it? You'd have to go back with a new corporate designee. Notice every time you learn something related to a topic and I will have that case ready and I will bring it to court or bring it to the deposition with me. So if I got the objection, I would cite the case and I would hand it to them and show it to them. And sometimes it as an exhibit. Because if I'm going to file a motion later, I mean, how reasonable is Mike? I mean, not only that, he brings the relevant and controlling case law that he's going to cite in his motion to the deposition. Right. Sometimes you'll see this. You know, if you're asking standard of care of medical professionals. I'll get this. Objection. Oh, this is his expert testimony. They can't say that. I said, Well, yes, they can. There's no case rule or statute that supports your conclusion that this person can't be as standard of care questions. And so there's a case on that right on point in New Jersey that says not only can you do a deposition, you can ask it at trial of witnesses, because if they don't know the standard of care, then who who does Right and bring those. I used to bring those cases with me. I will bring the deposition rule because in New Jersey we have court rules, as you do in your state. And I'm sure there's one on objections and instructions not to answer. And I can promise you one of the grounds for instructions not to answer is don't like the answer. Right? So ultimately, I would bring the rule and I've marked it as a exhibit, an exhibit in the deposition. I haven't do that in a long time, but I did that when I was newer and getting pushback on things. So in this way, I've already laid out my motion, right? And I found I didn't get those objections anymore. And I don't I very rarely get that stuff today. I also try to be even tempered. So here is a transcript. If it's not a video deposition or certainly what's submitted to the court, and I'm always, always cordial. Right. And in particular, if you're new to the practice of law, it's a little strange where everything you say is written down. And I became cognizant of this after my first sentencing argument in the military and which to my mind at the time was absolutely brilliant. I mean, it was it was on the level of Clarence Darrow. And so in the service, you have to certify all trial transcripts. And so when I got it, I thought, oh, my Lord, I sound like an incompetent person speaking. Additionally, I spoke so fast. Our court reporter, they had the recording device where you actually talk into it. It's like a mask you actually hold over your mouth. It's an early dragon software. As you know, the early 2000 and I turned around and her face was red. She said, You have to slow down, buddy. Oh, man, I did not do a good job. But I became cognizant of the fact of what I was saying was being recorded. And it was a good tool because it made me very conscious of what I was saying. And so there I will put things in the transcript because the transcript does not record tone. So I will say things like, Sir, there's no reason to raise your voice. I will say, sir, I'm not going to I'm not going to argue with you. I'm not going to argue in front of the witness. Right. Don't want to fight in front of the kids and making sure that stuff is in the transcript. That's recording the tone and tenor of what's going on in that moment. Because if I'm in a in a deposition with someone who's behaving really unprofessionally, I want to be sure the record accurately reflects that. I have one recently where I said, Sir, I have an order that allows me to take this discovery and you're directly preventing me from taking that discovery, Right? And then I filed a motion to one, right? So to that extent, I always try to be as even tempered as possible. It can be. Listen, I'll get it. I mean, there's times where I'm so mad my, you know, my hand might be shaking, but at the end of the day, hopefully it's not coming across. You have set a good example. I tell this for my children. When I get objections sometimes. Of course. Now, listen, I'm not telling anyone anything you don't know. I mean, look, there's. There's grounds for objection. So often you'll hear objection form like, okay, well, that's a that's a category of objections. Which one is the problem? You can ask that, too, sometimes. What is your form of objection and see what they have to say. But like I said, you can't say objection. I don't like the answer. So, um, but in order to avoid that sometimes, like, you know, for foundational stuff, it forces me to set a good foundation. So, for example, what the standard of care type of questions I'll set the foundation for what I'm about to ask because I understand that someday if I have to put this in a motion that the court's going to want the same information. So, for example, the standard of care, by the way, is a medical standard, right? We use it in legal terms, but it is a medical standard. I'll ask them, are you familiar with that phrase? Yes, of course I'm familiar with that phrase. Probably learned it in nursing school, right? Yes, I learned it in nursing school. And it's a medical standard, correct? Yes, it's a medical standard. And you have to meet it every shift for every day you work, correct? Yes, correct. And if you don't meet the standard of care, you give fire for your job, right? Yes, of course. So I've laid out the foundation for what I think is going to be a problematic area because now we're talking in different terms. We're not this isn't I'm not asking them for expert conclusions. And I will tell you candidly, if it's a director of nursing, I'll ask them, well, whose job is it? To be sure the staff meet the standard of care? And they say, well, if they're smart, they'll say, Me, It's my job. He or she will say, It's me. If they're dumb, they'll say something like, Well, it's everybody's job. And I always point out, well, you know, everybody's job is nobody's job. I mean, go tell your office workers, Hey, everyone, we're it's it's upon us all to keep the fridge clean. So see how that works out for you. Okay. So try to set a good example. I got to tell you, this picture brought back memories of my parochial grade school. Ah, but nobody likes a bully or a mean person. And I try to use this to my advantage. I find some It's very rare. It happens occasionally where a witness will feed off bad behavior and exert it themselves. But it makes people uncomfortable a lot of the time. To see someone misbehaving because it's objectively bad behavior and it makes people uncomfortable. Right? I try to use it to my advantage. I always say to plaintiff's attorneys that keep in mind you have a relationship with your client, but don't be so egocentric. That's not how it goes on the other side. A lot of times they only met this person like 20 minutes yesterday or even worse, sometimes 30 minutes before they came in to do the deposition. They don't have a relationship with them. And so if if you're if they're behaving badly, a lot of times the witness is uncomfortable, too. I will tell you, I will try to isolate the defense lawyer. I don't even look at them. I will look squarely at the witness and talk to the witness. Right. And I'll ask them, do you understand my question? Right. So it's a conversation between me and the witness defense lawyer is, you know, creating hurdles that are annoying to everybody. Right. I'll say things like, you can answer, right? If they get a and I'll tell them like, I don't want to have to read depose you choosing not to answer the question. Yes. Okay. All right, man. I can't force them to answer it. Right. But I want to make sure that the transcript looks as good as possible, but at the end of the day. Uh, I've had many instances where this defense lawyer is trying to be difficult, and the witness is more like, Oh, this sounds kind of like Hallmark ish, but ask. But they're like, bonding with me, right? Ah, ignore bad behavior. Right. You know, and in the same vein, like, I will use my body language. I will literally twist in my chair and I'm sending a nonverbal signal away from the lawyer. I will twist in my chair and just face the witness. I don't even look at them. Right. I just maintain eye contact with the witness at all times. Sometimes I'll wave them off like, okay, I get it. You know, I've said that. I said, okay, well, I'll just assume you're objecting to every question I have to ask. Okay. But I would. Can I can the witness and I please get through this and try to isolate them and ignore that kind of bad behavior? Right. Literally twist away. Sometimes if you if you get lemons, try to make lemonade. Right? Yes. Speaking objections. You ever get this where the defense lawyer is just basically coaching the witness right there on the record? I when they do that, I will say things like, oh, your lawyer brings up an excellent point. Or, oh, my God, thank you so much. You just reminded me of a of a of a of my third page. I forgot to ask. Right. And the witness is looking at the defense lawyer like, Yo, shut up. Right. You're not helping here, buddy. And I'll say that. I'll say, Oh, well, you're speaking. Objection. Your attorney, you know, raises brings up a good point. Um, and so what it does is it's it looks to isolate the witness like or isolate the defense lawyer from the witness. The defense lawyer is causing trouble for the witness now. Right. Especially if the corporate person, they don't like this stuff. Right. So at the end of the day, if you get lemons, make lemonade. Right. Tell my kids the same thing. And try to keep my options open. Mean and I learned this the hard way. If I do have problems in a deposition, I suspend the deposition on those points. It keeps me safe. I've had instances where I didn't suspend the deposition and I got improper instructions not to answer. And then I filed the motion and I went to the court. And, you know, the court said, well, she said the judge said something along the lines of, well, I would be inclined to allow the defendant to object on that way. I said, Well, Your Honor, there's no case law or statute that supports that. I probably shouldn't have been that blunt. At which point the judge looked at me and said, Well, did you suspend the deposition or did you close the deposition? I said, Well, I ended it, of course. So what you do with depositions? And she said, Well, then I'm not going to allow you to reopen it. And I was like, okay, I got it. Lesson learned. And so from that point on, whenever I have this issue to be sure that I suspend the deposition and I don't end the deposition because I'm going to file the motion, if I say I'm going to file it, I'm going to file it, I'm going to have filed it. My transcript is going to be clean and clear. It's going to lay out the issues. I will have marked the relevant case law. I will appear like a professional and I can't believe that that won't increase my chances of that judge telling them, you have to bring this witness back and have won this several times. And I think it is that killing them with kindness and that particular style that works well for me. It works for me. Like I said, everyone's got their own style, but that's the one that works for me. So here's a roadmap of what we discussed. We discussed, you know, how I learned my lesson. I'm a real jerk. Style counts, you know, using some of these basic parenting tools and understanding child psychology in order to go ahead and carry out these. Litigation and depositions in ways like understanding what what's going on there with this person, maybe being able to use that to my advantage and then crafting consequences and strategies for both litigation and for deposition. I would like to say that I am genuinely interested in helping people practice law. So I will tell you that you are always welcome to email me or call with questions. They were on the opening slide and they're on the bottom right of my slides. I hate email. I don't know how you feel about it, but I get it all. I get so much of it, I just can't stand it. I don't think I'm alone. I think I'm like 99% of attorneys. So I would encourage you, if you do have questions, just call me. I promise I will call back. If I can't take your call at the moment and whatever I can do to help you specifically in Nursing Home, I chair the National Group for American Association of Justice. So if you have discovery issues in that or depositions, things we've discussed here today, I'm more than happy to tell you about, or generally speaking, if you run into these situations, if there's a way I can help you, I'm more than happy to do that for you. So I want to thank you for your time and attention today. And good luck out there. Good luck out there. Um, I find that practicing law that way makes it much easier to sleep at night. And at the end of the day, what else is there? Right? So thanks again for your time and attention. Bye bye.