Cal Biz Lit tips us off in a great how-to post for defense lawyers about an early step in the process:
This first step is not unique to California, and not unique to product liability cases. In fact, Phone the phrase “stupid call” wasn’t even invented in California. As far as I know, the phrase was invented by a friend of mine who practices product liability nationally but is based in Montana.
The elements of the first step are incredibly simple:
1. Pick up telephone;
2. Dial number of plaintiff attorney;
3. Engage him or her in pleasant, or at least civil, conversation;
4. Act stupid about his or her case (this is easier for some of us than others); and
5. Try to get him or her to tell you as much about the case as possible.
The theory of the stupid call is really simple: first of all, more information is almost always better than less information. And while you can expect that the other side is going to posture, exaggerate, and, dare we say it, confabulate, the odds are that they are also going to tell you some things about the case that you wouldn’t otherwise know. And since the California complaint may have told you very little – in fact, if it’s a Judicial Council Form Complaint, it told you nothing at all – this is your chance to at least learn something about the injury and how much the plaintiff’s attorney knows.
Now, it may be that the other side won’t give you any useful information. It may be that he or she won’t even talk to you; there are plenty of jerks in this world, and a representative number of them are lawyers. But the other side isn’t going to give you any useful information if you don’t call, either, so you aren’t going to be any worse off for trying.
That’s pretty common and it’s not a bad idea for defense lawyers, but there are some caveats.
First, I’m usually candid about my theories, to a degree, because I want to frame the whole case on my terms, not your’s. Letting me infect your brain with my memes is sometimes in my best interest.
Second, if you act really stupid — you "don’t understand" a common legal issue or you "haven’t heard" a particular industry standard — I will take that as a sign that you are a lying snake and I will suspect and treat you accordingly.
Third, we’re all one big community of lawyers. Maybe you think I’m some nobody in your world and you’ll never encounter me again. Maybe that’s true. But maybe, just maybe, someday someone whose opinion you care about is going to ask me about you and I’m going to say, "he called me at the beginning of the case and either acted like he was stupid or really was just STUPID." Is that the reputation you want?