LAWYERS SHOULD MAINTAIN A COLLEGIAL RELATIONSHIP WITH OPPOSING COUNSEL— WHY CLIENTS SHOULD DEMAND IT AND HOW TO MAKE IT HAPPEN

Posted: December 15, 2017 | Tips

Litigation is can be expensive and nothing adds to the cost faster – with less to show for it -- than lawyers who bicker needlessly over trivia, who refuse common courtesies, who communicate only with rudeness, and who think agreement on any point is a fatal weakness.  Aggressive litigation can be carried out with collegiality between counsel, and when counsel are collegial, clients are the obvious winners.

Clients don’t have to tolerate a lawyer who starts fights and lawyers should cultivate a reputation for professionalism rather than being difficult.  Professionalism and collegiality pay major dividends for lawyers and clients alike.

WHY RUDENESS COMES EASIER THAN COURTESY

Maintaining a collegial relationship with an opponent does not happen automatically or without effort.  Why?  Because the “default” settings in litigation are built-in disagreement, distrust, high emotions, misunderstandings, and even animosity between parties.

It’s also easy for a lawyer mistakenly to take his/her cue from clients. And most of the time,  their client hates the adversary, so the lawyer hates opposing counsel. And to be frank, some clients cheer on their lawyer’s rude and difficult behavior.  Clients who are not litigation savvy mistake their own lawyer’s rudeness for strength. It feels good to them to read their lawyers’ gratuitously rude letter to opposing counsel and feel comforted they have a 500 pound gorilla on their side to beat up their hated opponent.  But it’s a foolish mirage.  They don’t feel so good or comforted months later when the legal fees pile up without much to show for it. 

Then there are the lawyers who genuinely are difficult by design or even dishonest.  We all know them.  It’s tempting to go nuclear on such an opponent and it can feel good for a short time.

So how do you maintain a collegial relationship with opposing counsel with all these built-in obstacles to collegiality?  

By working at it with intentionality.

HOW DO YOU CULTIVATE A COLLEGIAL RELATIONSHIP?

1. Try to say “yes” more often than “no” to requests for common courtesies.

Extend courtesies right out of the gate.

To establish and maintain a collegial relationship with opposing counsel, if you can do so without compromising your client’s interests and almost always you can, just say yes to that first request for an extension of time to move, answer, or otherwise plead to the complaint. And don’t bully by insisting on an “answer,” rather than a motion to dismiss. A judge would give them time to file a motion.

Agree to reasonable requests for extensions of time to respond to discovery, pleadings, and motions.  Sometimes the exigency of the situation demands prompt resolution, to be sure, and you have to say no. But not every time.  As a general rule, be courteous in scheduling depositions. Unless a good practice reason or exigency requires a preemptive notice, call opposing counsel before serving a deposition notice. Whenever possible work with counsel in scheduling briefing and hearings. 

It is a myth every conceivable tactical advantage must be taken to disadvantage the opponent in order to advantage your client. This rarely works. Even if it does on occasion, your reputation will take a hit for being a “jerk,” and this is not to your advantage or that of your clients.

2. Do what you do to cultivate any relationship – seek common ground and be friendly.

Relationships grow when people get to know one another and are friendly toward one another.

Does this sound like weakness in the litigation system that you think of as all-out war?  Does any kindness sound like a chink in your armor that your adversary will exploit?   Then maybe you are acting out of your own insecurities.  The best, smartest, toughest litigators I have known were friendly and courteous.  They choose to get to know their opponent in a human way and still win the case.

You walk into a cocktail party and walk up to someone you haven’t met. What do you do? Get to know them through the art of small talk.  Ask questions and be interested in them. Look for common ground. As a lawyer working on a case with your opponent, you already have something in common. You are both lawyers and both working on the same case.  A friendly conversation should be easier than at the cocktail party.

Ideally, you’ve already done your homework by learning about your opponent by researching the Internet.  You at least will know where they went to law school and when they graduated.  Considering your opponent’s website provides details about their practice, you can learn a lot about them before you meet.  Be genuinely interested and you might actually learn some information that will be valuable.

At the outset of the case, schedule a lunch or breakfast. If you are from out of town, make it for the next time you’re in town.

3. Talk to opposing counsel.   Common rapport can build trust that can lead to a settlement or amicable resolution of disputes.

Armed with information about your opponent,  look for occasions to talk about common interests, concerns, even small talk or anything other than your case.  Where is he/she going on vacation?  What grade are the kids in this year?   What’s a good place to grab lunch near the courthouse?  Maybe this happens while in the hall before a hearing, before the deposition hearings, or while staying at the same hotel out of town.

Rather than send a letter or email, try calling, even if you have to schedule a call.  The best lawyers I’ve known call the senior lawyer on the opponent’s team and are always working toward a good working relationship – because a good working relationship builds a rapport, even trust, and this pays off in the end. Getting things done and resolving issues is far easier with a friendly opponent than with a hostile one. Begin with casual small talk before delving into the reason for the call. When you’re posturing toward a settlement, having established a good working relationship with your opponent who has learned that you are a decent, interesting, trustworthy opponent, it is easier to negotiate a good settlement.

Look for your opponent at bar association meetings or continuing legal education classes and say hello as you would to a friend.

4. A friendship with opposing counsel eases the tensions of zealous advocacy.

When I was a young lawyer, my mentor at my old firm was a senior partner in the large firm. When I accompanied him to court, I was struck by the fact that other lawyers, even his opponents, regarded him as a friend. Everyone loved him.  They’d come up to him and chat about small talk and laugh with an obvious rapport.  They were veterans of major cases and had mutual respect and genuine affection for one another, even though they had always been adversaries and warriors. Those friendships were cultivated by working at them.  And, I couldn’t help but notice that depositions were less contentions or bitter, agreements were easier to come by – because the friendships eased the tensions of zealous advocacy.

5. Don’t throw the first punch, but if a fight develops, be fair and professional.

We all know lawyers who start fights and fight about everything. It is unavoidable that we will run into them.  Begin by realizing that either your opponent is not very skilled and is covering up insecurity with meaningless fights, or if he/she is skilled, they are probably using the fight to get you distracted and throw you off your game.  Don’t let them win at this.

Maybe he or she is just an angry person or a bully. Some people with anger issues or personality disorders become lawyers because they love to bully, and litigation is a socially acceptable outlet for their disorder. 

No matter the cause, you do yourself and your client no favor by allowing your anger to control you and lead you to fire back insults, “tit for tat” or worse, indulging in abusive litigation tactics to “teach a lesson.” A nasty fight is a distraction. It is not productive. You won’t want to be in the business of teaching lessons. And you will not advance the ball by exchanging rude letters. You will only run up the legal bill for your client.

One way to respond to a lengthy, nasty or condescending letter is to write back a short letter, for the record, saying that you disagree but see no useful purpose served by a lengthy refutation. If you feel you have to refute the allegations in detail, remember the letter may be a record in the case read by a judge or jury, and you will be the more credible lawyer if your letter is calm, reasoned, and polite.  

Then try calling and your angry opponent, saying we will have to disagree on some things, but can we agree on this or that?  If there is still no resolution, calmly say we will let the judge decide.  The court will appreciate your attempt to resolve issues informally on the phone.

6. Admittedly, sometimes there is no way to develop a collegial relationship with a bully.

Even the very best efforts to build a collegial relationship can fail, if you have an opponent who is determined to be a bully and fight over every triviality, because he or she sees litigation as a zero sum game where “only a sucker gives an inch.”  Then you have no alternative but to fight back. Fight and hit the bully hard.  But let your communications remain professional and avoid rude insults or ad hominem attacks. A judge may read these emails or letters, and judges are not impressed by intemperate communications or rude, personal attacks.  You can win the credibility contest by your professionalism.

In truth, whether the other side is an unmitigated bully or is cordial, it really doesn’t change the equation to fight for our client’s advantage.  We strive for that advantage whether the other side is fair or unfair.  What the bully will never understand is you don’t win the fight through clever insults and thrilling adjectives—you win cases by telling the truth of our client’s stories.  To be effective story tellers, we need to be credible.  Trying to out bully the bully while telling our client’s story never works because it is always a distraction from the truth.  Only the truth, well told, is what will win the day.