New Lawyers Bulletin

"Civil Procedures"
By Shawn McCann
I am beginning to recognize a pattern. The younger the opposing attorney is, the harder it is to get along. It appears that new attorneys try to disguise their inexperience with aggressive, hard-line tactics. Maybe it is insecurity that subconsciously causes some new lawyers to persecute the opposing attorney rather than prosecute the case.  Whatever the reason, many young attorneys seem to think that cooperating with opposing counsel is a form of malpractice. While zealous advocacy is unquestionably admirable and expected of attorneys, it is not inconsistent with courtesy or civility. Courtesy, as wisely noted by the Virginia Bar Association’s Creed, is “not a sign of less than fully committed advocacy,” but “the mechanism by which lawyers can deal with daily conflict without damaging their relationships with their fellow lawyers and there own well being.”
Mary Wortley Montagu stated, “Civility costs nothing, and buys everything.” I would add that for lawyers, uncivil behavior can be quite costly. Our employment begins after a dispute arises and our job is to help resolve it. Adding insult or antagonistic practices to the underlying dispute will hardly facilitate resolution. Abrasive or confrontational behavior only entrenches our adversary in their opposition and provides reason to respond in kind. After all, our job in most cases is to get the defense attorney to send us a check. I can’t imagine how upsetting or offending them will make the check bigger or arrive sooner. 
When it comes to maintaining civility, here are a few things I have learned:
Return All Phone Calls. On my first day at Girardi | Keese, Tom Girardi told me that there is no excuse for an attorney not to return a phone call. This minimal courtesy pays huge dividends in creating and maintaining a good working relationship with opposing counsel. When I am busy or don’t know how to respond to an issue, I find that a quick fax to defense counsel stating that I have received their message and will get back to them shortly works fine. Alternatively, returning their call at seven o’clock (a.m. or p.m.) usually gets me to their voicemail and puts the ball back in their court. Obviously, this only puts off the evitable, but it buys time to check with the partners at the firm, research the issue, and/or formulate my response strategy without souring the relationship with counsel. 
Don’t Sink to Their Level. We have all had to deal with attorneys that did not seem to understand the definition, let alone the value, of civility. We all have stories of lawyers that seem more likely to give you one of their kidneys than a discovery extension. Don’t sink to their level. It will not gain you any advantage in the case. Sometimes, that is exactly what opposing counsel wants. Long, drawn out discovery disputes and unending meet and confer letters are good for billing and often distract young plaintiffs’ attorneys from preparing the important parts of their case.   
Cool down.  During my first year at Girardi | Keese, Jim O’Callahan told me to let the scathing response letters sit on my desk for a day or two. While writing the blistering response can be quite fun and cathartic, sending it is usually equally unwise. After cooling down for a day or two, what seemed appropriate at the time often appears petty, immature, and irrelevant to resolving the issue at hand. It is better to wait a day to see a response go out than to see an imprudent response come back attached to a motion.  
Assume All Communications Will Be Seen By The Judge. Even when sarcasm or obstinate behavior is justified, it may not be wise. Many new attorneys have learned the hard way that everything they say can and will be used against them in a court of law. Opposing counsel will likely find some reason to attach to a motion your discourteous letter (or his confirming letter in which he quotes your unprofessional comment). It will not matter to the judge if you were justified in being uncooperative or discourteous. The mere fact that you acted unprofessional will follow you into that courtroom for the rest of that case, and possibly for the rest of your career. So, before you say or send something, make sure it is appropriate for judicial review. 
            Assume The Defense Bar Is Talking About You. Our legal community may seem big, but it is not so big that we can’t gain a reputation. It takes years or decades of civility and professional conduct to build a good reputation, but only a short while to acquire a bad reputation. New attorneys cannot afford to underestimate the grapevine. Word of unprofessional conduct can spread by mouth and by list serve like wildfire and can linger for years. Of course, opposing counsel will leave out his own unreasonable conduct in relaying the story and make you look reprehensible. Cultivating a bad reputation while we are new enough attorneys to be receiving this New Lawyers Bulletin is a shortsighted practice strategy.