For reasons not everyone can articulate, us lawyers have chosen a profession that innately requires competition every day. I am, however, not super competitive with other people. I zealously represent my clients by arguing the law and the facts, not stupid or petty issues.
Many lawyers are overly competitive and use discovery disputes or other minor issues to attempt to get a leg up in a case. Frankly, this is not a great tactic. It only causes the case to be more expensive and makes opposing counsel want to bang their heads against the wall when they receive any email, good or bad. I see it all the time, and it drives me completely insane. This is why lawyers get a bad name.
I am certain that lawyers opposing me have said that I do this. I admit that such behavior is not totally avoidable in all circumstances. At the end of the day we serve the client, so sometimes such action is necessary. However, I do try to counsel my clients that such tactics are not always going to get them the result they want.
Discovery is where the most egregious examples of this occur. Discovery is an enormously time-consuming, and therefore, expensive process. I don’t know if lawyers try to make their money here, if they are grumpy, or if they simply hate discovery, but it always brings out the stubbornness in lawyers.
The other key gamesmanship occurs in settlement discussions. It always seems to take four times as long as it should. We all know the value of the case and both sides’ numbers are probably not that far apart.
Instead of the email arguments and unproductive phone calls, a simple adult conversation could solve so many more issues.
My favorite example of such tactics stems from a discovery dispute conference. Both sides took issue with the other side’s responses to interrogatories. So, we decided to have a meeting — which immediately started with the other side yelling, quickly followed by aggressive gesturing and louder yelling. It escalated so quickly there was absolutely no productive work in the first hour of the meeting.
Finally, when it became evident that this was not going to get better, one lawyer suggested that it be recorded. He stormed out to get a video camera. It is interesting how people are much better behaved when the camera is rolling and may be shown to the judge.
The converse of this, of course, is that you cannot also be a pushover. Just because there is a bully on the other side wearing you down, do not give in.
It is important to pick and choose your fights. Not every issue has to be a fight and not every fight has a winner. You must strategically choose when to fight and when to rest. Instead of reacting immediately, take a few minutes to think through the entire issue, which directions are best for your case or bad for your case.
Consider what will this argument look like in front of the judge. How will that email be interpreted by a judge, who is probably already annoyed because the attorneys couldn’t just get along to work out an agreement? Write the email, then sit on it or have a colleague review it. Thoughtful contemplation will serve your client better than a shouting match.
As the Baltimore Ravens announce at the beginning of every game, “DON’T BE A JERK!”
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ABOUT ANGELA PALLOZZI
Angela Pallozzi works with business owners to create policies that are beneficial to their businesses. She regularly helps her clients with transactions, negotiations, disputes, litigation, and all types of daily business matters. Ms. Pallozzi advises business owners to prevent litigation and, should litigation occur, leads them through every step of the process to reach the best resolution. She works closely with her clients to understand their challenges and resolve them in the most efficient and effective manner.
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