What I Have Learned from Opposing Counsel: Five Secret Lessons from a Trial Lawyer
by Justice Thyme
Last year, I realized (again) that I was tired of being angry. I decided to seek out the sources of my anger to see if I could eliminate them. When I realized that the majority of my frustration occurred when dealing with specific lawyers who were opposing counsel, I knew that I could not literally eliminate them. So, I made up my mind to learn from them.
Just as raging river waters polish crude stones into refined gems, the adversaries who "rubbed me the wrong way" became my mentors, even if they didn’t know it. I began to see them differently, and have learned abundantly from them — even the rude, inconsiderate and downright mean ones!
Lesson 1. Sometimes They’re Not Trying to Trick You.
Gone are the "good old days" when lawyers could trust the word of their adversaries. When I began practicing law, I was taught to be suspicious of opposing counsel’s every move. Senior lawyers admonished me to consider the evil motives of the lawyers on the "dark side" — and never to trust them. I carried this attitude with me on a subconscious level for years, and it changed the way I interacted with opposing counsel. I always wondered, "What’s the catch?" Were they agreeing to something I wanted to gain the upper hand in some other way? The underlying suspicion gnawed at me.
Recently, while negotiating final settlement documents with an attorney with whom I had a good rapport, he included at the last minute language from a statute — modified to his client’s benefit. The modification completely demolished the legislative intent of the statutory provision, which was to protect the party that was releasing claims. I immediately became suspicious, and accused him of being deceitful with the statute language. He was shocked at the accusation and asked about my concerns. When I explained the legislative intent and the legal basis for my position, he said the modification was form language from his firm’s database, and he immediately corrected it. His forthright response was a good reminder that sometimes disagreements can be unintentional, and fixed with a little upfront communication.
Lesson 2. Sometimes They are Evil.
Evil has been defined as behavior that is hateful, cruel, violent or devoid of conscience. Lest we be too idealistic and overlook the glaring examples of unprofessional conduct that frequently assault us, we should remember that sometimes opposing counsel cannot be trusted. I learned this lesson when an attorney used his influence with a governmental agency to threaten my client (and me) with arrest and federal indictment — to gain advantage in a civil case. I knew his accusations were baseless, but I still had to defend myself and my client. A less extreme — and probably more common — example of vile behavior is using a dispute between parties to personally attack the opposing lawyer. It is especially bad form when done in court filings or before a judge.
Lesson 3. Not Every Difference of Opinion is a "Misrepresentation."
Lawyers afflicted with perpetual suspicion consider every factual dispute a "misrepresentation," and often file briefs to accuse opposing counsel of misrepresenting the facts. I am guilty of it; and I also have been on the receiving end. It doesn’t take much skill or finesse. Let’s be clear: Accusing an adversary in written legal papers of "misrepresenting" to the court is calling them a liar. Even worse, a liar who purposely is lying to the judge. Look at your briefing and consider whether this is a tactic you frequently employ. Consider whether opposing counsel are liars, or whether there simply is a difference of opinion as to the facts. Just because two sides disagree does not mean that one side is lying. Use a little grace and drop the accusations of misrepresentation. Where possible, focus on the fact that they have a different position and use your skills of persuasion to make your point, rather than attacking opposing counsel.
Lesson 4. Use Sanctions Sparingly.
Some lawyers routinely use sanctions; it’s a part of their checklist. Recently, a cavalier lawyer referenced Rule 11 Sanctions in the "Answer to a Complaint," as if it was boilerplate language. Rule 11 Sanctions should not be thrown around and should not be routine.
I was tempted to file sanctions against her for baselessly threatening sanctions against me. See how it is? No wonder the judges are sick of us. This poison affects them too.
Sometimes sanctions are necessary, but they should not be filed or threatened unless there is a strong basis to do so. One attorney filed a dispositive motion and simultaneously filed a Rule 11 Sanction motion against me as if he already had won the initial motion. When he lost the first motion, the judge denied the Rule 11 Sanctions motion as moot. Did his client pay for that baseless Rule 11 Sanction motion? Should the judge have sanctioned him for filing baseless Rule 11 Sanction motion? Use sanctions only when merited.
Lesson 5. Sometimes a Phone Call is Best.
Suspicion-based legal training teaches that e-mail is best. Then you can get it in writing. And, if you can’t get it from them, you can write it to them and then hold them to it ("Unless I otherwise hear from you, I will presume that you agree with everything in this letter.")
Sometimes that approach is necessary. However, it is an easy way to act angry without having to face the target of your anger. Picking up the phone first requires more courage. It requires use of your voice and not just a few simple keystrokes and a "send" button. It is much easier to decipher the tone of a phone call than an e-mail, which can take an unintended offensive tone simply by virtue of the absence of the human voice.
I recently have started to use the phone, rather than e-mail, to communicate with opposing counsel. This has enhanced my communication with many of them, and we have been able to resolve issues over the phone that at one time could have exploded into a nasty barrage of e-mails.
Of course, suspicion dictates confirmation of the telephone call with an e-mail.
Justice Thyme is a practicing trial lawyer and will present "What I Have Learned from Clients: 10 More Secret Lessons from a Trial Lawyer" in the next edition of The Docket.