Labor and Employment Law

Ca. Labor & Emp't Rev. May 2016, Volume 30, No. 3

Message From the Chair

By Amy Oppenheimer

Amy Oppenheimer is an attorney and retired administrative law judge whose law firm focuses on workplace investigations. She has written a book about investigations, testifies as an expert witness on employer practices in responding to and investigating harassment, and is the founder and past-president of the board of the Association of Workplace Investigators (AWI). Ms. Oppenheimer has trained employers and employees throughout the country in preventing and investigating workplace harassment, discrimination, and retaliation, and on understanding and eliminating implicit bias.

As lawyers, we are trained to be advocates for our clients and are duty bound to do so zealously. In litigation, that could mean pleading every possible cause of action, responding with every possible defense, filing and opposing every possible motion, asking for every last document that could conceivably be relevant, or asking every possible question in a deposition and perhaps doing so in a manner that some people would find intimidating. Isn’t this what it means to be a zealous advocate?

On the other hand, some causes of action are almost surely doomed to failure and not every defense is grounded in an actual factual and legal analysis of the case. There are motions that will invariably be granted and those that invariably will be lost. It is often (though of course not always) fairly predictable. Asking every possible question in a deposition will surely make it a longer deposition and result in a high level of contention. Such contentiousness increases the animosity between the attorneys and the litigants. Moreover, tactical inconveniences imposed by one party have a tendency to be reciprocated by the other. All of this will likely increase the cost of litigation and make it harder to resolve the underlying dispute.

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