Why It’s Your Problem If Your Opposing Counsel Is Using This Tactic
Anyone receiving this email from me generally isn’t in the category of the “attorney who flies by the seat of their pants.” However, we all have had opposing counsel who seem to make a living by doing this. I see these kinds of counsel at mediations all of the time. It can be maddening dealing with someone who is either mindless about their approach, defensive to a fault, or ill-prepared. It is easy to think, “well, that’s their problem.” Actually, it is your problem. Attorneys who are ineffective practitioners cost your client money, drag cases out, make messes and shave days off your life and sanity.
Some of the things you can do to help an ineffective opposing counsel help you are:
Pick Up the Phone At the Outset. Call your opposing on the phone at the outset of the case instead of sending lengthy missives. Find out who they are, what kind of law they generally practice and what they think about the matter. Don’t argue with them during this call. Try to find some area of commonality, even if it is a hobby or shared acquaintance or colleague. Some attorneys don’t practice in the subject matter of the dispute and it may be easier to gently lead them about the case rather than finding out six months in that they are completely lost and backed into a corner. Also, attorneys are people. People respond better to connection than nasty letters. Starting a fight to start isn’t the way to tame a lawyer. Fights cost money, time, energy and create risk.
Help Your Opposing Counsel Frame the Case To Move It Towards Resolution. Some cases such as failure to disclose in residential real estate sales are won or lost on a few key documents and concepts. From the outset, help your opposing counsel frame the issues and limit the scope of disputes about discovery such as document production. Get your mediator involved early in the mediation process to assist with framing the scope of issues and exchange of documents that need to be occur to settle the case. Sometimes an opposing counsel is more open to hearing from a mediator about what it takes to give a case a real chance to settle.
Give Documents Voluntarily and Early. Ask your opposing counsel what information they would need from you in order to clarify their assumptions about the matter. If you have documents that are helpful to you and that inevitably you would be more than happy to produce in discovery, provide the documents voluntarily and early. If you have a solid position, flip your cards over. Attorneys treated respectfully about the errors in their thinking are more likely to gracefully exit a case early than when you hide damning information from them.