As my colleague Andrew aptly noted last week, civility in litigation is a dying art. As I am introduced to world of litigation and interact with more fellow lawyers, I have been very surprised at how lawyers treat one another. There seems to be a pervasive attitude that to zealously represent your client means that you should treat opposing counsel with disrespect and to fight for the sake of fighting. Thus, I decided to write this piece on how I try to be more civil with opposing counsel, while still representing my client’s interests to the best of my abilities.
I believe in the common principle that you should treat opposing counsel as you would want to be treated. This applies not only to the legal profession but to life. Respect breeds more respect. When you first speak to opposing counsel, be friendly. There is way too much posturing when counsel meet or speak for the first time. A little respect in the beginning may lead to a much more pleasant experience through the course of the litigation.
To that end, always be mindful of your tone on phone calls and emails. This is more difficult in emails, but try to be respectful of your opponent. Don’t be a bully. Lawyers (and generally people) tend to react negatively to being bullied or treated with less respect. Contempt leads to more contempt and so forth. To counter this growing trend in emails, while proofreading my emails, I try to imagine how opposing counsel will perceive my communication. If I know I’m ratcheting up the intensity and tension, then I should expect a similar response. Try to take this into account when you are drafting anything. I know it’s difficult to predict how opposing counsel will react but be mindful of your tone.
In terms of respecting your opponent, I think it’s also common to have misperceptions about your opponent’s age. Whether you are the younger, newer lawyer or you are the older, more experienced lawyer, you should not treat the other lawyer with any disrespect based on that. Just because you may have vastly more experience in a particular legal subject area, does not mean that you should talk down to you opponent. And that goes for younger lawyers as well. Just because your opponent is older and may not be as tech savvy, that does not mean you should try to get anything past him or her.
I believe that following some basic form of these tips will do much to improve all lawyers’ lives. First, you should always return phone calls or respond to emails from opposing counsel in an appropriate fashion time-wise. Ignoring the emails of opposing counsel does nothing but create consternation between the parties. Second, always be courteous to opposing counsel. As a child, I was taught that kindness is contagious, and I feel that applies in the legal profession as well. As much as I want to get down to business on a call, when I start a phone call with opposing counsel, I always start with some pleasantries. That goes a long way to building a good working relationship with your opponent. Third, be respectful of the opposing counsel’s schedule. There is a tendency not to trust what the opposing counsel sometimes says regarding scheduling court appearances or deadlines. But if a lawyer says he or she has commitments and cannot do a certain date, then it’s very lawyerly of you to accept his or her word for it.
Overall, even though we are representing different parties and opposing interests, we are all lawyers. We are the only ones who can change the way we treat one another. We should not give in to the public’s stereotype of the angry, untrustworthy, or sleazy lawyer. With more a little more respect and courtesy in our profession, we can make a major change in many lawyer’s lives.
Peter S. Garnett is an attorney at Balestriere Fariello who represents clients in trials, arbitrations, and appeals. He focuses his practice on complex commercial litigation and contract disputes from pre-filing investigations to trial and appeals. You can reach Peter at peter.s.garnett@balestrierefariello.com.