Silence and Other Weapons of the Weathered Lawyer

Experience has taught me silence and like weapons can be effective. Here were five lessons for me, and perhaps for you.

1. As plaintiff counsel I met a potential new client, a woman who was catastrophically injured. Liability was a slam-dunk, damages were huge, and I was sure to improve my standard of living a thousand-fold when I was done with her file. An hour into the meeting she was hanging on to my every word. All that was left was to dot the i’s and cross the t’s. As I reached into my bag searching for my pen, a younger woman bearing a striking resemblance to my unsigned client, came up to us with a smile. Cheerfully, I stood up, stuck out my hand, and said, “Oh hello! You must be her daughter.” To which my unsigned client said, “No. She’s my sister”, and thereafter remained unsigned.
2. While cross-examining an expert at trial, I watched with anxiety as first chair counsel edged toward a fine point, upon which the case would live or die. The expert relied on a study he conducted and published in a reputable journal which showed that the remedy we sought would not have made a difference. Should his evidence have been accepted, we would have lost. Upon arriving at the critical findings, which showed that our remedy could in certain conditions produce a slightly better outcome in our favour, my first chair asked, “doesn’t this mean that the remedy worked?”, to which the expert answered “the outcome wasn’t statistically significant”.

   My heart sank. This was no surprise to us, and in fact, it was what we prepared for. We had played with different paths, and the most promising was a confusing and boring discussion about the meaning of statistical significance, sure to lose the judge’s interest. I braced myself for the quagmire to come. But instead, my first chair took the study in his hands, dropped it on the table with a flourish, paused, looked directly at the expert, and said “whatever that means”. Did the expert reply in anger about how important it was for a result to be statistically siginificant? Did he calmly set out his position? No. To my surprise, he slowly put his head down with a frown and sat silently. The judge, who had been seemingly on the brink of sleep, sat up and wrote furiously.

3. As defence counsel at a discovery I asked the plaintiff about her impairments following a car accident. She told me about a psychological problem for which she had a long pre-morbid history. I was not concerned. I asked, “anything else?” To which she replied, “no.” We changed topics and went on for another uneventful five minutes. When I was done, I had written my one-page reporting letter and recommended we offer to settle for a dismissal without costs and to take the matter to trial on a principled basis.

   Counsel for the co-defendant, however, stepped in with a list of prepared questions, beginning with, “tell me about so-and-so”, “so-and-so” being another impairment. The plaintiff took the opportunity to expound on this other impairment. And counsel continued with yet another “so-and-so”. And another. And another. At the end of the discovery, three things happened. One: I had a splitting headache. Two: my reporting letter recommended a range to settle the case above zero. And three: I vowed never to allow that to happen again.

4. I had called plaintiff counsel and co-defence counsel after discoveries and attempted to settle. We traded numbers but were far apart. We headed to mediation, but I held out little hope and prepared only a little. I believed that this was a file certain to go to trial. Sitting in the boardroom at a mediation I watched in disbelief as co-defence counsel eviscerated the plaintiff. The plaintiff’s face, once guarded, became red as anger built up inside her. Her smile gave way to a frown and finally she cried. When it was my turn to address the puddle of grief before me, still wiping away tears after a ten minute break, I said only one sentence, “we’re here in good faith to settle this today.” I settled. Co-defence did not.
5. Arguing a motion I listened, exasperated, as opposing counsel recounted evidence never tendered in the affidavit, told lies, and otherwise confounded the court. Wanting to object with every word, physically suffering as my back ached, it was everything I could do to remain calm. How could the judge fall for the misdirection? How could she listen so intently, giving her all the time in the world – in fact, wasn’t opposing counsel over the time limit? – asking interesting questions, while none of it was based on truth? I reached for the pitcher of water and watched as my hand shook from the tension. Thirsty, tired, aching, scribbling notes, my mind in overdrive, I sat there as still as a bobblehead on a boat.

   When it was my turn I was ready to pounce. I stood up to speak. But words failed me. I paused, undoubtedly looking as lost as I felt – where to begin? should I call opposing counsel a liar? should I call the affiant a liar? should I go in guns blazing or more muted? – and spread my arms, palms up. The judge asked, “Counsel? Do I need to hear from you?” I opened my mouth as if to speak but no words were found, truth be told. I shrugged. The judge smiled at me and said, “I’ve read your materials. I don’t think I need to hear from you.” And proceeded to turn around and pepper opposing counsel with questions.