A rookie mistake sheds light on how cooperation among opposing counsel can lead to better client outcomes, and tips on how to get there.
Ed Lyons, a commercial litigator at Jones & Keller, has more than four decades of courtroom experience trying tough cases in Colorado and across the United States. As a young associate just entering the legal profession, he recalls how he kept his own calendar long-hand.
For reasons lost to memory, Ed made a rookie mistake; he overlooked a key due date in answering a complaint. The torment of the situation woke the young attorney in the night as Ed realized the position he had put his client in. Theoretically, his client would be in default in the lawsuit.
As Ed tells it, the morning after, he summoned the courage and called opposing counsel, a prominent, well-known senior trial attorney in Denver. As the conversation began, the associate announced who he was and, before explaining the reason for the call, Ed recalls getting a response he has never forgotten. Opposing counsel simply said, "How much time do you need?"
The clemency given this young lawyer decades ago might not happen in today's more antagonistic and adversarial legal environment. We live in an era where mistakes are exploited for a win and public figures take cheap shots at the judiciary in ways that undermine the American judicial system.
In 2015, the Rules of Civil Procedure were amended to make clear that these standards, which govern what attorneys do in the legal profession, shall be liberally construed and employed "to secure the just, speedy, and inexpensive determination of every action."
While the Rules themselves contain numerous technicalities and deadlines with severe penalties, all Rules are to be interpreted in a way to quickly and efficiently determine cases on their merits and not on "gotcha" loopholes exploited in the Rules.
Yet, there has been a steady erosion of civility among courts, lawyers and in courtroom practice in general. The relationship of members of the bar to each other in the litigation field has undergone a gradual but significant change, one where litigators have become more combative and less collegial.
Opposing counsel does not have to be the mortal enemy. More cooperative relationships not only will help attorneys live longer–less stress, better health, more laughter–clients may benefit from better negotiations and faster, less formal proceedings, which are desperately needed to get through the pandemic backlog of court cases.
Manipulating the system
Sharp practitioners do manipulate the system. In Colorado, local rules require substantive conferral on the merits before most motions can be filed. Our firm recently attempted to confer on a motion to dismiss for failure of service of process because the defendant merely received the complaint by U.S. mail. Our firm assumed an oversight by opposing counsel and thought a conferral would right the ship.
In response, the rival attorney stated he "opposed" our motion while failing to disclose that he had already filed for and received a court order permitting substitution of service via U.S. mail – a fact we could not have known absent his sharing the Court's order.
In this instance, motion practice was engaged, wasting the client's time and money and burdening the judiciary, which had to rule on the motion, in a time when the courts are dealing with an unprecedented backlog from the covid-19 pandemic.
Judges generally do not like to see this type of manipulation, nor do they appreciate infighting among opposing counsel. Putting a judge in the position of refereeing unruly and petty attorneys rarely turns out well for either party.
These types of unpleasantries may act as deterrents to young talent who might otherwise be interested in pursuing law. Attorney James Goodnow, in explaining why his kids do not want to be lawyers, describes a litany of disagreeable behaviors in the field of law, ending with a rebuke of bare-knuckle justice. "The classical notion of the revered, noble lawyer is fading away, and with it much of the romance associated with the profession," Goodnow wrote for Above the Law.
How do we turn the tide and reclaim the mantle of civil behavior that makes us cheer for Atticus Finch in courtroom drama To Kill a Mockingbird? And, makes us want to be great lawyers, able to negotiate with and manage people to best outcomes? And, makes kids want to be lawyers?
Turning the tide starts with cooperation and the common courtesies we extend to others before, during and after trial to best effect.
Be professional. Lawyers are the professionals in the room and should act like it. Clients are typically too wound up to see beyond their own interests. Items like deciding when to pursue brief extensions of time should not be decided by the clients; rather, it is a courtesy that should be extended between professionals.
Be authentic. Whether in the courtroom, in deposition or in arbitration, authenticity creates connections, candor and a sense of compassion. Being genuine matters in getting to the truth from witnesses, and a few kind words may be all the motivation a witness needs to let their story flow. Avoid scripting statements and instead, listen and adapt to what is heard.
Use plain language. Only trained attorneys understand legalese. Use comprehensible terms and descriptors to effectively connect with clients, witnesses and opposing counsel.
Let go of ego. The case is about the client. This means letting go of status, comparative worth and competition, as Andy Benjamin, a lawyer and psychologist, writes. Lawyers should be confident in court but deflect attention from themselves so that the attention is focused on what matters, the facts and circumstances of the case.
Be healthy. Attorneys are busy, especially if they are good. All but the most disagreeable attorneys can be left feeling awful in the aftermath of nasty court proceedings. Protecting the well-being and health of attorneys should be a goal for the profession, one that can be accomplished by thoughtful gestures. Recently, a judge in Denver set a trial date more than a year out because both opposing counsels were female and pregnant. An extension for personal reasons is uncommon in the courtroom but is the type of courtesy that is good for the profession.
Be mindful of lasting impressions. It is easy under pressure and in the heat of a trial to pick a fight with opposing counsel in pursuit of a win. Each professionally convenient attack—whether criticizing opposing counsel, the judiciary or the courts for a disappointing ruling—negatively impacts public perception and regard for the courts and our profession.
Focus on substantive issues. Leave pettiness outside the courtroom. During a recent deposition in a case involving claims of sexual harassment, I objected to opposing counsel's questioning based on his characterization of a certain woman as "pretty." Counsel argued for three minutes to get me to agree the woman was pretty. In this case, the merits of a sexual harassment dispute have nothing to do with the physical attractiveness of an individual and the argument had turned from a legal dispute to a personal one.
With the COVID-19 pandemic, social unrest and political uncertainties, we have entered into an era where people are searching for institutions that work. The legal profession must be one of those institutions. That is precisely why now is the right time for the profession to exercise self-discipline, courtesy and professional behavior.
Society needs to believe in the strength and solidity of the judicial system. Attorneys who depend on the institution for their livelihood have a vested interest in preserving the character of the profession.
Nicole Westbrook is a corporate litigator and shareholder at Jones & Keller. She has argued on both sides of the aisle in cases ranging from defamation to breach of duty, fraud, contract disputes, real estate litigation, and all else in between. On faculty with NITA and a CLE instructor, Nicole believes hard fought cases and focusing on the win doesn't mean being nasty in the courtroom. Westbrook can be reached at firstname.lastname@example.org.
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