Many of us grew up watching reruns of Perry Masonand The Practice in which the protagonist attorneys use a take-no-prisoners approach with their opponents and wrap up a case in 60 minutes, including the commercials. However, as young lawyers, we quickly realize that day-to-day litigating is not so sensational. The reality is that most cases last months, sometimes years, and throughout that time, attorneys must work with opposing counsel to accomplish the necessary steps of a case. Litigating a case as a war may ultimately cause opposing counsel to back down but also may backfire, and it will almost certainly cause stress and chaos. It behooves opposing attorneys to work cooperatively from the outset. Opposing counsel are not the enemy. Learning early in practice that it is acceptable to compromise and that being reasonable is not the equivalent to losing will benefit your blood pressure and your clients.
One way to start dealings with opposing counsel is to call to introduce yourself personally. An early initial conversation provides an opportunity to set the tone of the case and discuss preliminary matters. For example, opposing counsel may agree to voluntarily dismiss a particular defendant rather than oblige you to file an expensive demurrer. Discussion, rather than motion, saves significant time and money. Sometimes opposing counsel may agree to your request in exchange for something that benefits his or her client but has little or no impact on yours, resulting in a win-win situation. For example, opposing counsel may agree to dismiss your client’s parent company, which is not a proper defendant, in exchange for your acceptance of service on behalf of your client. You save the opposing party money by accepting service, and your client is relieved of the expense of moving to dismiss the parent company or defending it at trial. The initial conversation is also an opportunity to sense how opposing counsel evaluates the case and may even result in an early settlement.
Similarly, once the judge schedules the case management conference, initiate scheduling the meet-and-confer discussion. Consider sending an e-mail message or making a call to mention a checklist of topics that the local rules or judge’s order require you to cover. Opposing counsel will often appreciate that you have cut down on the thinking that he or she must do, and it will help you to better understand what to expect in the case regarding future discovery and motions. A confirming letter after the conversation, including a request that opposing counsel reply immediately with any disagreement, is an important record to keep opposing counsel accountable for commitments he or she made. Taking this initiative will also encourage you to be better prepared in planning your case.
Planning is particularly crucial at the discovery stage. Screaming matches and childish class=”anchor” name-calling at depositions and nasty letters make for entertaining stories but waste client resources. Attorneys commonly, but often unnecessarily, battle about the timing and scope of discovery. Although getting what you want is an ego boost, it is important to consider the big picture.
In a deposition, it is typically not worth arguing about an objection. If you are taking the deposition, allow opposing counsel to interject the objection and, unless he or she is instructing the witness not to answer or is improperly coaching the witness, move on to the next question. If opposing counsel is instructing the witness not to answer, confirm with the witness that he or she is following counsel’s instruction, ask the court reporter to mark the question, and move on. It may work to ask the question a different way or to return to it near the end of the deposition to test if the attorney will maintain the instruction. Losing your temper makes it less likely that you will rationally think around the obstacle. Remember that it is your deposition, and it is in your client’s best interest to maintain control and get the best testimony. Typically, a court will recognize only egregious behavior by opposing counsel as warranting suspension of a deposition. Thus, if you react too aggressively, you may lose your opportunity to depose that witness.
With written discovery, it is often beneficial to grant opposing counsel’s request for an extension. Consider that you may later need an extension on your client’s responses or another compromise. Once you receive the opposing party’s responses, draft a respectful, concise letter addressing any deficiencies in the responses, considering it may later be used as an exhibit to a motion, and offer to schedule a call to discuss. Often a thorough meet-and-confer discussion aids in efficient resolution of discovery issues. Letter wars take more time and expense and are not nearly as productive. Many courts require a discussion before a discovery motion is filed. Thus, it makes sense to initiate it at the outset in the event a motion is necessary.
When planning a mediation, consider using a mediator proposed by opposing counsel. Opposing counsel will be more likely to trust a mediator with whom he or she is familiar, potentially leading to a favorable resolution for your client. Being reasonable early in a case may allow you to gain opposing counsel’s trust and ultimately get what you want.
Christiane A. Roussell
Hunton & Williams LLP