Nothing tests a lawyer’s worth like the duel over the last word. To gain an upper hand, we curb our attention to what the other party or lawyer is saying. This enthusiasm is both strength and weakness. Get in the final word, and you direct the narrative in your client’s favour. Strike too soon, and your client’s position becomes unshielded to a more devastating rebuttal.
The following extract from a televised political debate shows how an undisciplined attempt to score a point left the aggressor unguarded:
Ségolène Royal : No, I won’t calm down.
Nicolas Sarkozy : To be president of France, one has to remain calm.
Ségolène Royal : No, not in the face of injustice. Some forms of anger are perfectly appropriate, because they give voice to people’s suffering. There will be anger that I will express, even when I will be president.
Nicolas Sarkozy : That’ll be something to see.
This moment during Royal and Sarkozy’s 2007 French presidential election debate was played in the European media as the equivalent of Howard Dean’s “I have a scream” speech during the 2004 U.S. Democratic primaries. Sarkozy’s effortless provocation of Royal’s meltdown was a turning point of the campaign. In a preceding moment, she had even telegraphed her awareness of her adversary’s strategy: “I know your game. As soon as you are cornered, you cast yourself as victim.” Indeed, he did.
Royal and Sarkozy had been talking about the benefits of integration of special-needs children in the school system. Sarkozy, a lawyer by training, had provoked Royal, a technocrat, without appearing to be unreasonable at any given moment. He did this effectively by taking part of her platform and recasting it as his own idea. She could not resist attacking him for getting parts of it wrong, on points which few in the audience would understand.
He then recast Royal’s intellectual anger as hysteria by referring to a part of her anatomy — her finger — after which the discourse turned to Royal’s use of the digit. As soon as she doubled-down by telecasting a picture of a national leader in anger, “That’ll be something to see” (the difficult to translate, “Ce sera gai”) was all he needed to say to cap the exchange.
Hardball by stealth
Similarly, enthusiasm to be the client’s champion can cloud judgment in board meetings and negotiations where parties rely on lawyers to advise and represent them.
Clients expect lawyers to be the calm ones. There is more than a superficial reason for this. Take, for example, a contract negotiation. Your clients consider a clause to contain a non-negotiable right. The other side knows your clients won’t budge. The attack provokes a crisis around the issue in order to gain a concession in a collateral or even unrelated dispute.
If you invest emotional capital over a point both sides know you will never concede, your opponent will succeed in leveraging your anger against your clients. The other side wants you to feel you’ve successfully defended a core interest, when in fact the core interest has been used as a bargaining chip. This is a disguised hardball tactic some lawyers excel at instigating.
Rise to the defence of a non-negotiable point, and it gets drawn into the negotiation. The preferred response is not to make it an issue. Just to say, “No,” and move on.
Litigators’ elegant and clumsy provocations
Senior litigators will have seen this type of eruption many times in their careers. The most frequent venue is examination for discovery. The very object of the procedure is for one party’s lawyer to pry into the affairs of another party. (It is therefore amazing that prediction of the interviewee’s response to the intrusion is a skill few litigators are taught.) In many instances, the voice of outrage can be insincere. Some lawyers lose their composure on purpose, as a form of crude advocacy. Often it is a “junkyard dog” defence to an adversary’s legitimate incursion into a sensitive area of inquiry. The appropriate response is a resort to logic and process.
Once, I examined an elderly plaintiff for discovery. She was suing my client, a municipal construction company, after falling into a sidewalk trench. She arrived at the venue irritated, contemptuous of me or of the process. I recognized her negativity was my client’s advantage. I could have led by asking for her account of the accident. Instead, I asked her in exhausting detail about her shopping preceding her fall. It was all an exercise in proving she went about her business without much sense of the world around her, including the signs and barriers around the trench my client had dug in the sidewalk.
The witness became visibly annoyed when I asked her whether she had been on medication, and then when I asked her about each drug in succession, following the manufacturers’ lists of side effects. She became even more upset after I quizzed her over her eyesight and her sense of balance. Had I asked the question in the opposite order by asking about her trajectory into the trench and then about drugs and eyesight — the standard examination method — the plaintiff could have found it easier to attribute the accident to inadequate signs or barriers.
By the time I got to questions about the signs and barriers around the trench, she stopped answering questions altogether. Part of it was a realization that she must have failed to see the signs and barriers. After a moment of silence, I rephrased the last question and asked her point-blank to explain how she ended up in the trench.
“Can’t you see you’ve upset her!” the lawyer piped up, coming to her rescue. “Is that your objection?” I asked. “Yes,” he responded. “She’s an elderly woman.”
I had been ready for such an intervention by her counsel. I explained simply that if he did not permit me to ask the questions, I would object to any trial evidence accounting for her trajectory into the trench. I then offered to go home with my question unanswered. He directed his client to answer.
Her answer? “I don’t remember. You expect me to answer such questions?” If someone else utters your choice of the last word, let them utter it. It’s not who says it that counts.
The eyes of the beholders
The hardest lesson in a verbal wrestling match is learning how an impartial observer sizes you up while you and your opposite number dispute a rhetorical point. You have to know your audience.
In the transactional or corporate setting, some will be oblivious to the interactive process and will be swayed only by the bottom line — who “wins” the argument. Others will be more sensitive to the behaviour of the interlocutors and will be uncomfortable with the “aggressor” even though he may have teased out the essential flaw of the other’s position. The only way to do this is to watch those who are watching.
In courts or tribunals, you can be assured the “Fourth Wall” is always watching. (See my column onlaw and theatre).Some judges are easier to read than others, but one shared proclivity is distaste for personal clashes between counsel.
The bench is not fond of being asked to break up fights that originate in other venues such as out-of-court cross-examinations. One successful technique for making your side of rhetorical skirmish look better in the inevitable motion record is to imagine the judge is actually there while the point is being disputed. Then stand your ground. Don’t let the other lawyer get the better of you. Defend the process; that is what the judge would do. You may find yourself not only impressing your client, but your opponent’s client, too.