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The Recorder
Making Nice

BY DIANA MAIER

Having a good working relationship with opposing counsel results in a winning situation for everyone — clients, attorneys and the legal system itself. Building that constructive and cordial relationship with your opponent, however, may pose some challenges.

It is a major misconception (usually on the part of your client) that an adversarial relationship means a nasty one. This legal model began with the idea that if opposing counsel zealously advocated their divergent viewpoints, then a judge or jury could arrive at the truth, which often lies somewhere in the middle of these opposing arguments. Looking at the adversarial system as a device to garner truth rather than conflict reveals the wisdom of maintaining an honest, ethical and cordial relationship with opposing counsel.

A good relationship with opposing counsel promotes dialogue and compromise. It means that deadlines can more easily be extended or moved, which is in the best interest of all clients, and that resolution occurs more readily and is more satisfying for both parties. A genial relationship with opposing counsel most often allows for expending energy on the details of the case, rather than on your conflict or anger with the person across the table from you.

If the relationship with opposing counsel is a productive and trusting one, attorneys often can save the client time and money by avoiding useless motions about issues that can instead be worked out informally. Counsel is more likely to successfully use creative solutions. One employment litigator said she was able to avoid deposition costs to her client when opposing counsel permitted her to informally interview the opposing client rather than depose him. This allowed the litigator to test the strength of her case and obtain reliable information through a revealing informal conversation as opposed to an overformal deposition. It also allowed her to be more honest with opposing counsel about the strengths and weaknesses of their respective cases. This ultimately led to effective resolution of the case.

Another litigator commented that when she has a cordial relationship with opposing counsel she notices that the anxiety level of her client decreases. If you subscribe to the idea that a particular type of energy output results in a similar kind of energy returning, this makes perfect sense. Counsel is also more likely to treat an opposing client with respect if she or he respects that client's attorney.

These are just a few of the benefits resulting from a cordial relationship between lawyers.

But what if, despite all of your attempts at decency and cooperation, you are dealing with counsel who seems to thrive on conflict or is simply polarized by the issues in the case? What action you take depends, in part, on what is making the relationship so difficult. Here are some common symptoms of conflict and how to cure them.

  • If you can't trust opposing counsel: If your opposing counsel is not reliable or even contradicts herself, put everything in writing. This creates a record of your work on the case and minimizes contentious verbal interactions with opposing counsel. Writing also allows you to think and reflect about what communication is appropriate. If you find you are particularly exercised about a case or individual, write a letter or e-mail (which you should always send in hard copy, too) and then wait 24 hours before you send it. This delay will allow you to re-evaluate both the merits and wording of your communication.

    One litigator working with an uncooperative opposing counsel created a paper trail of his interactions with her. When the judge in the case had a chance to review the file, he could immediately see that the litigator had pursued a reasonable and professional approach with opposing counsel. When the judge heard that discovery was delayed, he assumed rightly that the litigator's opposing counsel was the cause of the delay. He then notified opposing counsel that she would have to cooperate or face sanctions. She complied, and rarely gave the litigator reason to pursue judicial intervention after that.


  • If opposing counsel is on the wrong side of a case with a clear moral high ground: Even if a case has a seemingly clear right and wrong side and, in your opinion, your opposing counsel is on the side of wrong, it is important to realize that lawyers often interact with the same attorneys over and over again. While this case may leave a bad taste in your mouth, the next one may have more shades of gray. In questioning attorneys about whether they believe they have the moral high ground, often both sides believe they do. When discussing the case with your opposing counsel, keep away from the merits of the case and focus on process. If you antagonize counsel over the very fact of his representation, you set yourself up for a negative interaction when you meet him again.


  • If opposing counsel has a vitriolic personality: As much as it may be tempting to strike back when opposing counsel is being unreasonable, consider whether it is productive. Sometimes it is critical to let opposing counsel know that you won't just roll over for him/her. But if you get too mired in your conflict, you won't see the forest for the trees, so watch your communication style. Always be polite. Always. If counsel insists on running himself off a cliff, step out of his way or you will go down with him. Engaging in the conflict only obscures the real issues and spells disaster for all the involved parties.


  • If opposing counsel has a poor sense of boundaries: Opposing counsel can make you uncomfortable by engaging in personal interactions that hamper the professional relationship. Counsel may comment on your client in a way that seems personal rather than professional. Counsel may also call you incessantly about the case or may want to engage you in a personal relationship, romantic or otherwise. Make your intentions, and thus your boundaries, clear. It is fine to have limited social interaction with opposing counsel, but hold off on building a new friendship or romantic relationship with counsel until the case is resolved.

    One attorney faced an opposing counsel who was exceedingly friendly and flirtatious. While in this particular instance she did not find the behavior offensive, it gave her concern about the ability of the two to interact optimally on a professional level. So she told counsel that she would revisit the issue of a personal relationship with him after the case was over. In the meantime, she emphasized, both counsel had to focus 100 percent on the issues of the case.

    This approach allowed her to circumvent a situation where counsel's personal interest may have been a form of manipulation that could have jeopardized the best interests of her client. Although some conflict may be inevitable in a case, avoiding it because you are overly concerned with the feelings of opposing counsel is detrimental to your client.


  • If opposing counsel is abusive to your client: After polling lawyers on this phenomenon, it appears to occur most frequently in a deposition setting. Although this can be tricky, when counsel is conducting a deposition that is needlessly hostile to your client, you should end the deposition if nothing else works to keep the attorney on track.

    One litigator said she was going to pull her client out of the deposition if opposing counsel did not stop his bullying. When the opposing counsel told her she had no right to do that, rather than arguing with him, she suggested they call the arbitrator together and discuss the situation with him. While the arbitrator stated that ending the deposition was not ideal, he did make clear the guidelines by which the deposing attorney had to operate. By signaling to the deposing attorney that she was not afraid to go to a higher authority on the issue, the defending attorney was forcing him to toe the line.

There may be other reasons that opposing counsel is difficult to work with, but the principles articulated above are effective in most situations. You may also be dealing with a person who simply has an excessive amount of anger and cannot control his anxiety with you or anyone else in his life. But by employing some of these suggestions, you will find that your work life becomes easier and that you have more productive and less stressful relationships with counsel. Most importantly, your clients will be infinitely happier with the results you achieve.

Diana Maier is an employment litigator who works with employers and employees on issues ranging from hiring to firing and everything in between. Her practice also includes criminal defense, personal injury, civil rights litigation and employment consulting. A former public defender, Maier graduated from Stanford Law School in 1998 and currently is a name partner with Bushnell & Caplan & Maier in San Francisco (www.bcfmlaw.com).

Practice Center articles inform readers on developments in substantive law, practice issues or law firm management. Contact Sheela Kamath with submissions or questions at skamath@alm.com.
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Reprinted with permission from The Recorder © 2006 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.


     
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