1. Wait Until You Are Calm to Respond
Has this ever happened to you? You are under stress and about to leave the office. Then you receive an insulting e-mail from opposing counsel. You are infuriated. What a jerk. You type out a contentious response showing why they are incredibly wrong, point by point, and press send. Then you almost immediately regret sending such an impulsive response.
I have almost always regretted sending this kind of response. On the other hand, I have almost never regretted waiting overnight before responding. When I come back the next morning, I am more objective, detached, professional and business-like.
Remember, litigation is our society’s alternative to armed conflict. It is natural for you to feel stress because your client is in a serious conflict. But that doesn’t mean you have to aggravate it. Instead, you can be a peacemaker. If you follow conflict avoidance techniques, such as a waiting period before responding, it will help both you and your clients. See Colorado Principles of Professionalism (CPP), Practical Consideration 3.3 (courtesy and respect for opposing counsel, maintaining objectivity and trying not to take disagreements personally).
2. Pick Up the Phone
David Little, one of our firm’s founding partners, was recently honored with a lifetime achievement award from the Colorado Bar Association. In his acceptance speech, he repeatedly encouraged lawyers to pick up the phone and talk to each other instead of just sending an e-mail.
I used to initiate “conversations” by sending a lengthy e-mail to opposing counsel. Now I prefer to talk on the phone first and document the conversation later. This is not just good ethics practice, it is good for your clients as well. Trying to resolve disagreements by e-mail is inefficient and results in high bills for your client. Think about all the time you waste by typing out long e-mails that are based on misunderstandings. Direct conversations with opposing counsel are more “real-world” oriented and lead to more efficient results. See CPP Principle III (cooperation is a guiding principle of conduct).
3. Stay Humble
No one likes an arrogant lawyer. Winning or losing is often more about the merits of your client’s position than your individual performance. While it is true that the quality of your lawyering can affect the outcome of a case, it often is not the most important factor.
Is your case 100 percent correct on every point? Or does your opponent’s position have some merit too? Understanding the flaws in your own case will help you be more circumspect before you pick a fight with opposing counsel. See CPP Practical Consideration 4.7 (“Neither we nor our clients are the sole possessors of truth or righteousness in any circumstance.”)
4. Remember It’s Not All About You
Your case is not just about you. It is about your client and the justice system as a whole. Try to remember what your client’s best interest is. Is it in your client’s best interest for you to quarrel with opposing counsel because your feelings were hurt? See CPP Practical Consideration 12.2 (“We will commit to treat the representation of the client as the client’s transaction, dispute or controversy, and not as a personal dispute with opposing counsel.”)
5. Empathize With Your Opponent
The opposing party is a human being that suffered an injury and has hurt feelings, whether real or imagined. Your opposing counsel is also a human being. She is trying to do the right thing for her client just like you are. She is under stress and makes mistakes just like you do.
If you want to be treated well, then treat opposing counsel with respect and consideration. That includes being gracious with respect to deadlines when you can be. See CPP Practical Consideration 10.4 (spirit of cooperation and accommodation in scheduling matters).
6. Your enemy today may be your friend tomorrow
A good lawyer knows when to show mercy and compassion to opposing counsel because they realize they are not far from being in their opponent’s position. You may be winning today but tomorrow you may lose.
Even if you are winning now, you may not be far away from having to negotiate a settlement agreement with opposing counsel. There are almost always difficult times during the settlement process when you will have to trust the other side to deliver something or take some action.
Why should opposing counsel treat you with respect and dignity during the settlement process if you did not treat her that way during litigation? See CPP Practical Consideration 4.6 (“Justice is not achieved where short-term victory plants the seed of future conflict.”)
7. Remember the Big Picture
As lawyers, we can choose to seek justice and mutually beneficial outcomes or we can aggravate our client’s dispute for our personal gain. This is not just bad for your client, it is bad for you too. You may gain in the short term, but in the end it will take away your health and sanity. “[J]ust as legal action pursued for legitimate ends can accomplish great good, legal action pursued for improper purposes or by unjust means can cause great harm.” CPP Practical Consideration 4.1.
Please set aside this article for the next time you get a nasty e-mail. When it happens, close your door, take a deep breath and skim through the main points again. Take some time and get some perspective before you respond to opposing counsel. “Above all, a lawyer owes to all with whom the lawyer comes in contact, civility, professional integrity, and personal dignity.” CPP Principle XIII. Then, pick up the phone and call opposing counsel. You’ll be glad you did. D
Michael R. McCormick is a non-equity shareholder with Montgomery Little & Soran who practices in the field of complex civil litigation with an emphasis on professional liability defense. He can be reached at firstname.lastname@example.org.