Update (February 23, 2012): Today, U.S. Mag. Judge Janie S. Mayeron quashed the subpoena that defense counsel sought in order to force the interrogation of plaintiff’s counsel, discussed below.
Original Post (February 15, 2012): Every book is a triple story, the story in the book itself, the story of reading of the book, the story of writing the book. All litigation is the overlay of stories — the litigation itself — atop of other stories — the underlying and conflicting versions or understandings of reality that precipitated the lawsuit in the first place.
As there is an inevitable overlap in starring roles, in many cases, there is often an echo effect as the litigation seems to embody the dysfunction that caused the dispute in the first place. This is probably most obvious in litigation in the family law context and least obvious in cases with institutional professional litigants like large companies.
And this is one of the obvious benefits of legal representation separate from the fact of formal legal education. The professional litigators bring the distance and professionalism that litigants lack.
But things sometimes get complicated when the cross-hairs of litigation focus on the advocates themselves.
It seems appropriate that litigation that would appear to be an endlessly recursive loop of paradox would involve the complication wherein the lawyers merge with the litigation.
In the latest chapter of the Afremov legal malpractice litigation, defense counsel seeks to depose plaintiff’s counsel. Apparently plaintiff’s counsel met with a witness whose testimony under oath, plaintiff’s counsel argues, flip-flopped from what he said when he met with plaintiff’s counsel to discuss the case.
The risk of disruption when litigation turns against itself in a sense and becomes litigation about the litigation itself is widely recognized. Courts routinely narrowly limit the situations when it is appropriate to depose the advocates in litigation. The standard is strict — “no other means exists to obtain the information other than deposing opposing counsel” — and it seems it will fall to U.S. Mag. Judge Janie Mayeron (D. Minn.) to see if that standard is met in the Afremov case.