• June 5, 2019
Julie Andrews Still Photo From The Sound of Music

Regular readers of Minnesota Litigator are familiar with our TAAFOMFT (“These are a few of my favorite things”) posts in which we¬†engage in the fine art of whining via irony.

The title of this post comes from a famous negotiation in the 1960’s involving the United States and Vietnam in which the shape of the table for the negotiation was, itself, the subject of several months of negotiation.

We have not experienced a conflict over table-size or shape in our decades of civil litigation practice but civil litigators’ lives are all too consumed with similarly weighty (and, at the same time, seemingly weightless) skirmishes.

Such a squabble has come up in United States et al. ex. rel. Higgins v. Boston Scientific, where the parties are fighting over Fed. R. Civ. P. 30(d) — the duration of a key deposition.

What makes these kinds of fights so particularly delightful is, of course, their magical mixture of weight and weightlessness, their importance and their patent superficiality. If civil litigators ever have doubts about the value of their work, it is often such pathetic-from-a-distance tussles that prompt them.

In negotiation, table shape is, of course, symbolic. In litigation, however, what is at stake is different. It is not a matter of symbolism.

Whether the plaintiffs get 3.5 hours of questioning of Mr. Dhamm, a key witness in this alleged surgical device defect case, or whether they get 7 hours could, in theory, make a tremendous difference in how the litigation proceeds.

Thus, the “negotiation metaphor” is not apt. It is more like the “battle vs. the war metaphor.” In a prolonged war, two sides might shed a lot of blood over a particular hillock, pass, or cross-road because every small battle might be the keystone or the lynch-pin. Each fought-over inch might be the decisive inch.

So, cheers to the fine lawyers who have to go mano-a-mano in the trenches and, more praise and sympathy for the judges who have to calm tea-pot tempests like these. It is the opposite of glamorous. It is almost degrading. But, as we all know, war is hell, and civil litigation is civilized war.

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