By Michelle L. Azar
July / August 2016
I always thought by this time – deep into my third decade of practice – that I would know it all, or at least most of it, and that I would never have to look back and wonder if I could have done something better, more efficiently, etc. At least it happens less often now. And that is the nature of this work, we learn as we “practice”.
Here I share a few of the principles I have learned, and those of various colleagues I polled:
– Treat the opponent like you like them, and you probably will. If a phone call is your first contact with a lawyer, use it as an opportunity to talk a little about one another, and tell her/him that you look forward to litigating with them. If you first meet in a courtroom, shake hands, and introduce yourself. After a hearing, ask for a few minutes to talk about the case, clients, and how you can work with one another to handle the case efficiently. I know this sounds trite, but it’s also true. People don’t just want to be liked; they also want to be respected. When you treat them with respect, they almost always reciprocate, because they want your respect. – Cole FitzGerald.
– When dealing with a particularly difficult opponent or even if you are just having a bad day, take a minute to think it over before hitting “send” on the response to that nasty, threatening email you just received. I had one of my professors in law school tell us “don’t ever put anything in writing unless you are 100% comfortable having it be on the front page of the newspaper.” And we often forget that emails are written communication. – Cary Sabol.
– Always remember that cases come and go, but most attorneys will see the attorney on the other side again. How you treat opposing counsel or the tactics you use in one case, may come back to bite you in the long run. Just because you are zealously advocating for your client does not mean that you have to be difficult for the sake of being difficult or treat opposing counsel the way your client feels about the opposing party. – Scott Perry, Sue-Ellen Kenny (follow the golden rule).
– Sometimes asking if you did something to offend the other person or acknowledging that the other person may be having a difficult day can cause the other side to pause and reflect on his or her own actions. Ask the other person to lunch. Getting to know someone as a person and not simply as “the opposing counsel” humanizes them. – Tami Augen Rhodes.
– I always return telephone calls the same day I receive them, even after hours. Clients often complain that they cannot reach their lawyers and that is so frustrating, not to mention nerve wracking, when clients are concerned about their important issues. If a lawyer is unavailable, sending an email, texting, or having a secretary or paralegal return a message is an alternative. It is essential professional behavior and good business practice as well. – Eunice Baros.
– One of the things that I learned over time that goes against my natural desire to be friends with opposing counsel is to never become so familiar with your opposing counsel that you lose your litigation edge. You can be courteous and professional without becoming so close with your opponent that you forget that you are, in fact, adversaries. – Brian LaBovick.
– Emails may not convey the tone you have in mind. An email can be perceived as curt or short when it is merely intended to convey information in a matter of fact sort of way. Adding conversational words such as an opening greeting, e.g., “good morning”, can help convey your request without sounding unpleasant in tone. Not only does this help smooth the way to a better relationship with the opponent, but you seem reasonable rather than whiny or overly demanding.
– Another good reason to be careful in how you treat your adversaries in litigation is that you never know when the circumstances change. For instance, a prior adversary (in highly contested and unfriendly matters) may later be endorsed by colleagues, apply to be a judge or other positions of authority, become co-counsel in other matters, and even be referred back as a client. Naturally, any issues stemming from prior encounters may negatively impact these unrelated future events. – Alan St. Louis.
– Watch other attorneys, including the opponent, to learn from them. Judges are generally willing to have you sit in on trials; just call their Judicial Assistants to find out their policy and when trial is starting.
I am amazed that with all that has been said about professionalism, especially here in PB County, some still think they are better advocates, more “aggressive”, if they are difficult to work with. I feel like I accomplish so much more, with less expense, for our clients through diplomacy. Even where we disagree with the other side and we have to go to court, I think lawyers are better advocates if they can present a crisp, interesting issue that isn’t confused by distracting side issues or personal attacks. – David Ackerman.
– Adopt a mentor! The Palm Beach County Bar Association has mentors available for the asking. This isn’t just for new attorneys either. It’s great for handling an area a little outside your usual practice, or bouncing ethical dilemmas off a colleague.