How to get along with opposing counsel in litigation
By Christiane A. Roussell
Many of us grew up watching reruns of “Perry Mason” and “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
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 it also may backfire
and almost certainly cause stress and chaos. It behooves opposing attorneys to
work cooperatively from the outset. Opposing counsel is 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 introduce
yourself personally with a call. 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 dismiss a particular defendant voluntarily
rather than oblige you to file an expensive demurrer. Discussion, rather than filing
a 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 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 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 is an experienced labor and employment litigator at Davis Wright
Tremaine LLP in Los Angeles. This article was featured in the CYLA E-News Fall
2012 edition. Reprinted with permission.