Sometimes lawyers fight to get what their clients want. Other times, we fight for what our clients need. On other occasions we are trying to prevent other lawyers’ clients from getting what they want or need. It can all get somewhat confusing.That is why the truly organized legal zealot keeps a secret list of legal gambits, that he can use when things get out of hand.
I am not talking about causes of action or affirmative defenses or other claims and defenses that appear in written pleadings or in legal courtroom argument. I am instead referring to real world methodologies used to turn the tide of negotiations, prevent suits from being filed, achieve victory without blood spilt, and the like. I am talking about the measures, tactics, or actions that you use once as the result of desperation, and then add to your list of exploits for future consideration because they worked.
Legal gambits are a lot like the opening lines used in bars by the truly successful Don Juan types. In the night club seduction dance, the first time a phrase is turned, it is born out of the time and circumstance. Upon realizing that the charming one liner broke the ice and engendered social interaction, however, the smooth talker files it away for re-use at a later date, with another person. The first utterance is creativity and charm. The re-use becomes a “line.”
Of course, that doesn’t make the “line” any less successful, and the same is true of the legal gambit.
The first legal gambit I ever developed was the First Name Missile.
As a young lawyer many moons ago, it quickly became apparent that more seasoned adversaries would attempt to intimidate me and sap my confidence by pointing out my lack of experience, knowledge or training. They would attempt to portray themselves as my superior and me as their fledgling unequal.
To counter these efforts, I quickly determined it was necessary to elevate my stature in their eyes, even if it meant lowering theirs. One of the easiest methods of accomplishing this goal, I discovered, was the First Name Missile.
Upon receipt of correspondence or communications addressed to “Mr. Kramer,” I would immediately respond to “Mike” or “Susan” on the other side. I would similarly walk into a crowded conference room and walk right up to the opposing attorney 30 years my senior and smile, stick out my hand, and say, “Hello Dave, nice to see you.”
It was surprising how often that minor gesture changed the mood, and the course of things.
The second gambit I recall stumbling upon, however, is one that is so obvious I’m surprised it isn’t used more often. About six years into practice, I was contacted at my office in St Louis at 4:45 p.m. by opposing counsel who insisted that a deal we had been working on for over three months would be dead in the water unless I obtained a certain document from a certain office of the US government immediately. By the time he was done with his explanatory harrange, however, it was 4:54 p.m.
My frantic efforts to locate the correct person at the local office succeeded at 4:58, but she informed me nonetheless that the offices were about closed and that no documents could be generated until the next day.
I called back opposing counsel to explain, but he simply said it didn’t matter, it was not his client’s position it was actually a deadline required due to some international aspects of the transaction, and that there was nothing they could do. That’s when it dawned on me. I assured him I could fix the problem, got off the phone and called directory assistance (yes, it was before the Internet).
Within a scant few minutes, I was able to locate the Los Angeles office of this governmental entity, where it was only 3:30.
An hour later, I had the document in the hands of all who needed it, thanks to fax transmission technology.
I
had the occasion to use the “time zone” defense again just yesterday.
My client had insisted on a certain action being taken by 2 p.m., announcing the deadline with a lot of yelling, demanding and desk pounding. Perhaps to prove a point, the opposing side complied by taking the action, but did so at 2:45 p.m.
The timing would still work for my client, and it was in his best interest to still go forward. But ego, and face-saving were important to him. He was thus inclined to blow the deal “on principal,” despite the economic benefit to himself. That’s when I realized, however, that he happened to be in Idaho for the day, and was thus in the Mountain time zone, where it was an hour earlier. He accepted the performance in an email showing HIS time zone, and all were happy.
The moral of the story of course is that, gambits or not, some legal strategies involve thinking outside the box to help clients, and doing so often involves the juggling of time and perceptions.
It’s no wonder I like college basketball more than the pros.
They still allow the use of the zone defense.
© 2011 under analysis LLC. Charles Kramer is a principal of the St Louis Missouri law firm Riezman Berger, PC. Under analysis is a nationally syndicated column of the Levison group. Comments may be sent c/o this paper or direct via email to comments@levgroup.com