Sharp Practice

[Dood]

I like the “sharp practice” phrase used by Canadian courts in reference to attorneys trying to bully or take advantage of opposing counsel’s oversights and mistakes. 

Is this something you run into often? I would imagine the line is often quite blurred between sharp practice and asserting that opposing counsel’s failure to follow procedural rules should benefit your client. When I was a trial court law clerk, it sometimes felt like elements of sharp practice and gotcha motions were the norm.

[MagnaCarter]

I would not say its something I run into often, but it certainly happens. I find it's typical of less-skilled and less-reputable counsel, and often is used when their case/defence is not very strong or they are hiding something. That being said, it seems some lawyers are just difficult jerks for the hell of it and try to pull fast ones to exhaust parties. It is never productive and rarely does it yield much benefit to the person engaging in sharp practice.

[Bob Jones]

On 1/20/2022 at 7:52 AM, Dood said:

I like the “sharp practice” phrase used by Canadian courts in reference to attorneys trying to bully or take advantage of opposing counsel’s oversights and mistakes. 

Is this something you run into often? I would imagine the line is often quite blurred between sharp practice and asserting that opposing counsel’s failure to follow procedural rules should benefit your client. When I was a trial court law clerk, it sometimes felt like elements of sharp practice and gotcha motions were the norm.

If you're using it in email correspondence, you have to be careful and diplomatic, as you never know when your email correspondence may be reproduced in court. For example, if I think an Opposing Counsel is intentionally being a dick and ignoring procedural rules (such as ignoring my correspondence), I will gently flag that applicable rule to them, reiterate that "I assume that was not your intention," and ask that they behave accordingly. Something to that effect. So I am basically calling them out for being a dick, without coming off as too combative.

 

Basically, 1:12 of this clip: 

 

Edited January 23, 2022 by Bob Jones
Grammar/Style

[Aureliuse]

In family law, sharp practice happens too often; to the point when one opposing counsel, during a call with me, thankfully exclaimed, "OMG, finally, someone who is not an asshole on my file."

I ran into the following situations:

1. When it was clear that I was the point person on the file and running it from the beginning until the end, opposing counsel would never address me in correspondences, in written submissions, or in oral submissions (not even "my friend"). Email replies to me would always copy my family law partner and addressed to her - to the point she was asking me "WHY?"

2. Asking for $500 costs thrown away for a late filing at the beginning of a file - I was asking indulgence to late file what would be equivalent as my client's Statement of Defence in Civil Litigation (or Form 10: Answer in Family Law). I am sorry, what prejudice did your client suffer from my client's mother's funeral. She was in no state to instruct counsel.

3. Receiving toxic letters from an OC who constant asks me "is that a good use of your client's legal fees counsel?" and ends with "your position has no merit."

4. Attaching my Offer to Settle to a motion Reply Affidavit (not sure if this was incompetence or inadvertence).

5. Objection rabbit during trials (whack-a-mole counsel) to throw me off during cross-examination.

6. Purposely always serving my firm on a Friday afternoon. The affidavits were sworn on the same-week Monday.

7. Still served me with motion materials/requests to admit after I served and filed my Notice of Change (my client was hard to pin down. The OC served me instead).

8. Using family mediation as a way to evaluate the strengths and weaknesses of my case, then serving us with an Application mid-mediation including some "without prejudice" discussions in pleadings.

9. Interrupting my client during depositions (questioning), then gets annoyed when my client could not answer two or three consecutive questions at once. Proceeds to call my client uncooperative during trial on cross-examination.

10. Misleading the court that my client was not represented to proceed uncontested when opposing counsel had two correspondences from me. One was arguing over a judge because I led my client during direct examination on background information (age, date of birth, kid's names, etc.) - COME ON! What difference does your objection make?

11. Squeezing what should be a long motion into an 1-hour motion to get an early date (are we going to argue 7 issues in one hour??)

12. Writing directly to the judge without copying opposing counsel.

I could think of other examples if you need more.

[Dood]

It’s interesting to hear your experiences. I would imagine family law is already stressful enough without having to deal with that crap!

3. Receiving toxic letters from an OC who constant asks me "is that a good use of your client's legal fees counsel?" and ends with "your position has no merit.”

I feel like this is kind of the norm here in the US - at least in local state courts. A few times a year I’ll take on side gigs off the internet in random states to help attorneys with drafting litigation documents (often responses to dispositive motions). And wow - the state of practice in some areas is so discourteous and low brow. More similar to the WWE tbh - where every filing or correspondence accuses OC of being incompetent or acting in bad faith. Straight pandering to their angry clients.

It happens in federal courts frequently also here - often with OC frantically and improperly filing sanctions motions to try and force your hand in routine discovery disputes or over minor procedural issues.

[MagnaCarter]

It can be very practice-area dependent. I think you are right about angry clients being a factor. I've encountered it more in particular areas of litigation versus not at all in others, and its often where my sense of the actual litigants is that they are out of touch with reality, emotionally charged, and perhaps demanding too much from their lawsuit, which forces some lawyers to do whatever it takes to get a result. Still, some lawyers are just asses just because...

[Chambertin]

Most of those are clearly due to being assholes or incompetent but 8 and 12 are unprofessional. I would never even imagine dealing with that in my practice (tax litigation). I cherish the civility between my colleagues at DOJ and do everything I can to keep tax litigation a collegial bar.  

[Rusty Iron Ring]

On 1/24/2022 at 10:08 PM, Aureliuse said:

 

9. Interrupting my client during depositions (questioning), then gets annoyed when my client could not answer two or three consecutive questions at once. Proceeds to call my client uncooperative during trial on cross-examination.

 

I recently had somebody go completely over the top with this one in discovery.  It was unbelievably frustrating for the witness, but more importantly it also generated a completely useless transcript for the guy. The transcript was all just counsel talking, arguing, and taking positions about motions he might bring, and me occasionally interjecting with variations on "Counsel, do you have a question for the witness?" or "Counsel, that's not what the witness said. Perhaps you could let him finish the answer he started to give you.". The witness didn't even get a chance to admit anything important. 

I don't understand what he thinks he is going to do with it. 

[Ruthless4Life]

On 1/24/2022 at 5:08 AM, Bob Jones said:

If you're using it in email correspondence, you have to be careful and diplomatic, as you never know when your email correspondence may be reproduced in court. For example, if I think an Opposing Counsel is intentionally being a dick and ignoring procedural rules (such as ignoring my correspondence), I will gently flag that applicable rule to them, reiterate that "I assume that was not your intention," and ask that they behave accordingly. Something to that effect. So I am basically calling them out for being a dick, without coming off as too combative.

 

Basically, 1:12 of this clip: 

 

Yes there is a fine line being drawn between 

A) “ I assume you are being a dick “ (which presumes that he is entirely competent and purposely ignoring the rules)

B) “ I assume you’re not being a dick “ (which presumes that he is simply incompetent and not purposely ignoring the rules)

Sometimes I have difficulty picking my poison. 

On 1/25/2022 at 11:08 AM, Aureliuse said:

In family law, sharp practice happens too often; to the point when one opposing counsel, during a call with me, thankfully exclaimed, "OMG, finally, someone who is not an asshole on my file."

I ran into the following situations:

1. When it was clear that I was the point person on the file and running it from the beginning until the end, opposing counsel would never address me in correspondences, in written submissions, or in oral submissions (not even "my friend"). Email replies to me would always copy my family law partner and addressed to her - to the point she was asking me "WHY?"

2. Asking for $500 costs thrown away for a late filing at the beginning of a file - I was asking indulgence to late file what would be equivalent as my client's Statement of Defence in Civil Litigation (or Form 10: Answer in Family Law). I am sorry, what prejudice did your client suffer from my client's mother's funeral. She was in no state to instruct counsel.

3. Receiving toxic letters from an OC who constant asks me "is that a good use of your client's legal fees counsel?" and ends with "your position has no merit."

4. Attaching my Offer to Settle to a motion Reply Affidavit (not sure if this was incompetence or inadvertence).

5. Objection rabbit during trials (whack-a-mole counsel) to throw me off during cross-examination.

6. Purposely always serving my firm on a Friday afternoon. The affidavits were sworn on the same-week Monday.

7. Still served me with motion materials/requests to admit after I served and filed my Notice of Change (my client was hard to pin down. The OC served me instead).

8. Using family mediation as a way to evaluate the strengths and weaknesses of my case, then serving us with an Application mid-mediation including some "without prejudice" discussions in pleadings.

9. Interrupting my client during depositions (questioning), then gets annoyed when my client could not answer two or three consecutive questions at once. Proceeds to call my client uncooperative during trial on cross-examination.

10. Misleading the court that my client was not represented to proceed uncontested when opposing counsel had two correspondences from me. One was arguing over a judge because I led my client during direct examination on background information (age, date of birth, kid's names, etc.) - COME ON! What difference does your objection make?

11. Squeezing what should be a long motion into an 1-hour motion to get an early date (are we going to argue 7 issues in one hour??)

12. Writing directly to the judge without copying opposing counsel.

I could think of other examples if you need more.

Also happens in commercial litigation though perhaps a bit less “personal”.  People sometimes do this for billing purposes.  But it’s not personal, just business. 

Edited May 29, 2022 by Ruthless4Life

[MOL]

Always always always write any correspondence to anyone as if it is going to be read in open Court or to your mother.

[Ramesses]

It happened twice when I was doing my litigation rotation.

The first time it was a personal injury case where a couple got bit by their neighbour's dog. Defence counsel missed the deadline for one of the plaintiffs and tried to get the evidence by asking for it under the other plaintiff. The lawyer from my firm fought it in chambers and won.

The second and more dramatic time was when an opposing lawyer was allowed to come to our firm to review some documents. No photocopies, no photos, just read and remember. He told the receptionist he was going for lunch and will not be back for some time. A random partner walks by the meeting room and notices a student inside furiously typing. The partner starts chatting with the student since it was COVID and a lot of people worked from home. It took about five minutes before the partner discovers this was not one of our students but was a student left by the opposing lawyer to type out all the documents. The partner yells down the hall for the receptionist, which is when everyone came to see what was happening. The partner told the student to delete everything he typed and the student closed the laptop and said it was opposing counsel's laptop and he could not unlock it. After a lot of yelling and not being able to locate the lawyer in charge of the file at our firm nor the opposing lawyer, they let the student leave with the laptop. As a student I felt very bad for that student but man was he going to be a hero when he gets back to his firm. Oh and the opposing lawyer did not come back that afternoon but did come back a few days later saying his student misunderstood his instructions and they have reprimanded the student and we should let him look at the documents again.

 

[Conge]

On 6/16/2022 at 12:44 AM, Ramesses said:

 

The second and more dramatic time was when an opposing lawyer was allowed to come to our firm to review some documents. No photocopies, no photos, just read and remember. He told the receptionist he was going for lunch and will not be back for some time. A random partner walks by the meeting room and notices a student inside furiously typing. The partner starts chatting with the student since it was COVID and a lot of people worked from home. It took about five minutes before the partner discovers this was not one of our students but was a student left by the opposing lawyer to type out all the documents. The partner yells down the hall for the receptionist, which is when everyone came to see what was happening. The partner told the student to delete everything he typed and the student closed the laptop and said it was opposing counsel's laptop and he could not unlock it. After a lot of yelling and not being able to locate the lawyer in charge of the file at our firm nor the opposing lawyer, they let the student leave with the laptop. As a student I felt very bad for that student but man was he going to be a hero when he gets back to his firm. Oh and the opposing lawyer did not come back that afternoon but did come back a few days later saying his student misunderstood his instructions and they have reprimanded the student and we should let him look at the documents again.

 

I'm not a litigator, so I don't get the context for this kind of situation - is this a normal procedure? Wouldn't the documents be subject to disclosure at some point, or not? Why do this "read and remember" but you can't take copies approach? 

[Rusty Iron Ring]

21 minutes ago, Conge said:

I'm not a litigator, so I don't get the context for this kind of situation - is this a normal procedure? Wouldn't the documents be subject to disclosure at some point, or not? Why do this "read and remember" but you can't take copies approach? 

I'm curious as well.  Closest I've had is letting a lawyer inspect documents, but it was always on the understanding that they could tell us what documents they wanted us to make copies of and send over. 

[Jaggers]

We do this on the odd occasion. Typically it's when we have a demand letter from a lawyer that makes allegations that have been investigated and are unfounded. We let them see the investigation report, but don't want to give the full version to them as it has a lot of stuff relating to other employees and what they told the investigator. The goal is to show them that we did a good investigation and will be able to defend it if we have to but not release the unredacted report if there's any way we can get out of it.

Sometimes it is a set of documents that they argue are possibly relevant, but we know are not, so we let them come in and look so they are satisfied. Usually that's for documents that involve customer records etc. that we don't want to send out unless we absolutely have to.

[MOL]

Yeah I've provided or reviewed docs on a without prejudice basis with trust conditions that no copies be made or notes taken. Often expert reports on causation.

[Rusty Iron Ring]

15 minutes ago, MOL said:

Yeah I've provided or reviewed docs on a without prejudice basis with trust conditions that no copies be made or notes taken. Often expert reports on causation.

Interesting.  I think I prefer this way to what has been happening a lot lately, which is people sending me an expert report but saying that it's provided on a without prejudice basis.  What do I do with it now? Can I give it to my expert? if he reads it, he has to disclose it in his own report.  if it never gets served, what do I do about that? Am I going to have trouble getting him in the box, since his opinion is necessarily informed by without prejudice documents? Or do I not give it to my expert, and then keep getting opinions from him knowing that I'm holding a report on that very subject that I can't directly talk to him about and that might eventually be dropped on his lap? 

Vexing.  Fortunately, usually easily resolved with a call to counsel. 

Edited June 17, 2022 by Rusty Iron Ring

[MOL]

I've also had them sent to me with the trust condition that I cannot use or read unless I agree to pay for them in advance. I send them right back or bin them and tell them. I am not financing your lawsuit, if it's a legitimate disbursement then I will settle up with you at the conclusion of a file. Now, there are exceptions if I have requested it or we have discussed it. But I am not paying for your shitty chiro report that you commissioned as a way to pay the chiro back for a client referral.

[epeeist]

11 minutes ago, MOL said:

I've also had them sent to me with the trust condition that I cannot use or read unless I agree to pay for them in advance. I send them right back or bin them and tell them. I am not financing your lawsuit, if it's a legitimate disbursement then I will settle up with you at the conclusion of a file. Now, there are exceptions if I have requested it or we have discussed it. But I am not paying for your shitty chiro report that you commissioned as a way to pay the chiro back for a client referral.

Different years ago when it was paper copies, but in the electronic/PDF era I had a lawyer in a file with multiple parties send a letter to everyone saying the cost of getting the materials together was say $150.00 (not exact amount but something like that, for each party). To which I sent a reply saying, no, they had a duty to provide the documents (case-managed there was actually an order for each party to produce copies of all documents) and similar to you, any possible costs would be resolved later.

And @Rusty Iron Ring not quite your situation but it's not unusual for me to see draft reports for mediation, which seems like a helpful practice to me (makes settlement more likely if experts can review each other's preliminary opinions and discuss with counsel) but I can see your point about, later on if doesn't settle and goes to trial, what are obligations of expert to state what they reviewed? And to make it more complicated, what if some of the draft reports were from experts for parties which have settled out of the lawsuit, so that one's own expert reviewed those draft preliminary opinions, which may have useful statements of fact not just opinion, but there's no final report coming from them before trial?

[Rusty Iron Ring]

33 minutes ago, epeeist said:

And @Rusty Iron Ring not quite your situation but it's not unusual for me to see draft reports for mediation, which seems like a helpful practice to me (makes settlement more likely if experts can review each other's preliminary opinions and discuss with counsel) but I can see your point about, later on if doesn't settle and goes to trial, what are obligations of expert to state what they reviewed? And to make it more complicated, what if some of the draft reports were from experts for parties which have settled out of the lawsuit, so that one's own expert reviewed those draft preliminary opinions, which may have useful statements of fact not just opinion, but there's no final report coming from them before trial?

If somebody sends me a draft report, but doesn't say anything about it being without prejudice, then I don't think I would worry about it too much.  If expert reviewed a draft document that wasn't ultimately used, and somebody wants to ask them about it, I don't think it would be a big problem. Either it contained something useful or it didn't.  Vs asking them about what info they got from a document that actually was provided on a 'without prejudice' basis, or how it affected their opinion, if the 'without prejudice' document is never actually served or waived. But who knows. I could be totally off the mark and it will come back to bite me one day.

Personally I'm not crazy about the draft reports either.  If this is really their opinion, ask them to sign their name to it.  Don't try to scare me with what somebody might say but apparently hasn't quite said. 

 

53 minutes ago, MOL said:

I've also had them sent to me with the trust condition that I cannot use or read unless I agree to pay for them in advance. I send them right back or bin them and tell them. I am not financing your lawsuit, if it's a legitimate disbursement then I will settle up with you at the conclusion of a file. Now, there are exceptions if I have requested it or we have discussed it. But I am not paying for your shitty chiro report that you commissioned as a way to pay the chiro back for a client referral.

This drives me nuts. Or the guys that send you a bill for getting Sch. A records that you didn't ask for and that they need to prove their case.  Is there somebody out there just reflexively paying these things, that makes the attempt worthwhile?

Edited June 17, 2022 by Rusty Iron Ring

[epeeist]

8 minutes ago, Rusty Iron Ring said:

...

Personally I'm not crazy about the draft reports either.  If this is really their opinion, ask them to sign their name to it.  Don't try to scare me with what somebody might say but apparently hasn't quite said. 

...

[portion only quoted]

Oh, I can totally see a reason for draft reports because based on incomplete information. Like if parties have decided to mediate before examinations for discovery or before experts travel to examine a piece of evidence or something, I can see experts being fine with doing a draft based on the limited opinion available to that date.

Not expressing an opinion on use of engineer's seal, but thinking that if expert is an engineer who would typically stamp their report (depending on province, in Quebec they don't from my understanding) that should only be done for a complete report, not an incomplete one, so I could see them feeling free to express preliminary opinions but not wanting to sign and seal when they haven't done all tests or examinations.

[MOL]

53 minutes ago, epeeist said:

And @Rusty Iron Ring not quite your situation but it's not unusual for me to see draft reports for mediation, which seems like a helpful practice to me (makes settlement more likely if experts can review each other's preliminary opinions and discuss with counsel) but I can see your point about, later on if doesn't settle and goes to trial, what are obligations of expert to state what they reviewed? And to make it more complicated, what if some of the draft reports were from experts for parties which have settled out of the lawsuit, so that one's own expert reviewed those draft preliminary opinions, which may have useful statements of fact not just opinion, but there's no final report coming from them before trial?

If they put the expert on the stand or if they say they are going to, then you are entitled to ask and receive copies of whatever records or info that they based their opinion on so that you can use it for cross; Vancouver Community College v. Phillips, Barrett.

With respect to draft reports of parties who have settled out, I don't know which way a court would jump, I expect there is no power to compel them except for an application for records in the possession of a non-party. I'd likely start with a phone call to their counsel to see if they might agree to share them. At trial, I'd be calling their expert, I wouldn't want to leave my expert's opinion hanging based, at least in part, upon a draft report. I would want a much sounder evidentiary basis for my guys opinion.

Edited June 17, 2022 by MOL

[Ramesses]

On 6/17/2022 at 5:43 AM, Conge said:

I'm not a litigator, so I don't get the context for this kind of situation - is this a normal procedure? Wouldn't the documents be subject to disclosure at some point, or not? Why do this "read and remember" but you can't take copies approach? 

 

On 6/17/2022 at 6:06 AM, Rusty Iron Ring said:

I'm curious as well.  Closest I've had is letting a lawyer inspect documents, but it was always on the understanding that they could tell us what documents they wanted us to make copies of and send over. 

I am not 100% sure but my understanding was there were parts of the class that was subject to litigation privilege while other parts were not. There was an application hearing and the judge ordered my firm/the client to let opposing counsel come and review the documents. 

[epeeist]

@Rusty Iron Ring @MOL A different thought about expert witnesses that relates to questions of sharp practice. I've changed/adapted/simplified situation below to preserve confidentiality etc.

Usual caveats I am not expecting legal advice from others but will decide legal and ethical issues myself...

Some expert witnesses in scientific/engineering fields - areas in which following the evidence, scientific method, and expert consensus are key principles - have publicly and repeatedly expressed strong anti-vax and/or anti-masking policies. My thinking is that (1) it is fair (and one may be obligated to as a competent effective counsel!) to challenge an expert's qualification to opine (either for not being scientific or being biased or both); (2) the point should at least be discussed with one's client, they need to be aware and to discuss if one thinks limited benefit to challenging (especially if court rather than continuing with trial would grant an adjournment for other side to get another expert...).

I'm thinking of expert reports and testimony having nothing whatsoever to do with Covid or medicine, so not within the witness's area of claimed expertise. But that it would be fair to challenge someone who expressed the belief that the Earth is flat, for instance - to what extent can ridiculous beliefs that are outside the expert's bailiwick fairly be used to challenge their ability to be a dispassionate expert following scientific principles?

There was also the question in friendly discussion, is an expert who is aware of an opposing expert's views obliged to inform their client of the opposing expert's views if aware? My initial thought is yes, whether or not to challenge in cross is a legal decision and knowledge of the opposing expert that has not been improperly gained is fair. For instance, if an expert is at a joint evidence exam and without agreements to contrary (e.g. hot-tubbing agreement that no reliance on anything outside agreed-upon report) an opposing expert says something damaging to their side ("this was clearly defectively manufactured or designed...") that the client lawyer should be informed. And if the possibly damaging thing is about Covid/masks/vaccines, it's no different. Especially if the opposing expert goes to the extent of posting signs at their workplace that are against masks...

A follow-up issue, if no ridiculous beliefs of the opposing expert, but of their boss/employer/principal, who may review their reports and give advice or directions, is that also fair? ("I understand that your workplace, even during the worst of Covid, had your boss the owner telling people masks and vaccines don't work?").

EDIT: yet another follow-up - if one thinks it okay to cross-examine, and if one knows (and if necessary could produce evidence) that opposing expert has worn masks or respirators when required for other reasons like possible asbestos contamination, etc., is it fair to challenge a demonstrably false assertion that they can't wear masks? (for claimed health or religious reasons)?

Edited July 4, 2022 by epeeist

[MOL]

I think it's fair game to question an expert on their opinion on other topics if you can tie it back to the issue at hand. So, if someone is expounding on a scientific matter and has looney tune views on a different scientific matter, I'd go after them on it. I think you have to and you are being negligent if you don't. It's up to the other side to put a cogent objective before the Judge and then the Judge can decide.

If an expert I retained, didn't bring said looney tunes to my notice, if they are aware of them, then I'd be furious. I think they should let me know. Though in fairness, they do have a duty to the court not to become a shill for me as well.

If the boss has the weird views, unless you can show they impacted the person's opinion, I don't think you can use them or that a Court would let you. If someone tried to do that to one of my experts at trial, I'd be on my feet immediately questioning relevance.

[epeeist]

8 minutes ago, MOL said:

I think it's fair game to question an expert on their opinion on other topics if you can tie it back to the issue at hand. So, if someone is expounding on a scientific matter and has looney tune views on a different scientific matter, I'd go after them on it. I think you have to and you are being negligent if you don't. It's up to the other side to put a cogent objective before the Judge and then the Judge can decide.

If an expert I retained, didn't bring said looney tunes to my notice, if they are aware of them, then I'd be furious. I think they should let me know. Though in fairness, they do have a duty to the court not to become a shill for me as well.

If the boss has the weird views, unless you can show they impacted the person's opinion, I don't think you can use them or that a Court would let you. If someone tried to do that to one of my experts at trial, I'd be on my feet immediately questioning relevance.

Agreed re the first two paragraphs, that was the (friendly, not legal advice situation) opinion I'd expressed.

One additional situation that came up in friendly discussion, if one attends a scheduled agreed-upon expert joint evidence examination, during a period in which masking was required with the usual health/religious exceptions, and one person refuses to wear a mask (and there was no advance notice they wouldn't) and your expert phones you to discuss - do you support your expert cancelling their attendance, tell other side they owe costs thrown away, etc.?

The third paragraph, I was thinking of, not just the boss has those views, but they have signs in the workplace espousing the same ideas and a joint evidence exam was held there in which the signs were visible (and legible in background to some photos if additional evidence needed). So it's more like the scientific or engineering firm employing the opposing expert is "officially" expressing those beliefs in the workplace as being the firm's official view. Which doesn't necessarily change your or my answer, but I'd at least have to think about it more and perhaps ask to what extent they agree with versus ignore workplace/their boss's opinions regarding scientific matters...