Developing a collegial relationship with opposing counsel can be hard work. But if you get along with opposing counsel, you will see the benefits immediately: your cases will go more smoothly, your life as a lawyer will be less stressful, and your reputation will improve immensely.
The tips that follow assume your opposing counsel also wants to develop a collegial relationship. Some lawyers will resist, which is why I have also included a few tips for dealing with lawyers who would rather fight than get along.
Say Yes to Common Courtesies
For many lawyers who want a collegial relationship with their opponents, this is where it begins. Common courtesies include saying yes to extensions of time, being reasonable in scheduling around vacations, and consulting with the other side before setting depositions, briefing schedules, and hearings.
Get to Know Your Opposing Counsel
Moving past common courtesies might make you nervous. Our system of law is adversarial, after all. For some lawyers, there is a sense that if they make themselves vulnerable in any way — by simply being friendly, for example — the other side might see this as a weakness to be exploited.
You can be a tough litigator while still being friendly. Far from being a new concept, it’s as old as Shakespeare. “Do as adversaries do in law,” said a character in The Taming of the Shrew. “Strive mightily but eat and drink as friends.”
To get to know your opponent, proceed as you would in any social situation. Imagine you are getting to know your neighbor or someone at the gym. It’s like that, only much easier, since you already have something in common with opposing counsel — you are both lawyers.
To find out what else you have in common, make small talk as you would at a party or a bar. You can also go high-tech and use the Internet, which will yield many interesting details about a person’s background if you do a little digging.
Find Opportunities for Conversation
Once you have some insight into your opposing counsel, you need to find opportunities for conversation. By talking about the things you have in common, you will make new bonds that will smooth the rough patches you’ll experience as you work together on your case.
Talk While Waiting Around
Some opportunities for conversation do not require planning. There are the five minutes before a deposition starts, or the ten minutes you spend waiting for the judge before a motion hearing. Perhaps you are both waiting for the clerk’s office to open. Perhaps you both have layovers at the airport. Any time spent waiting can be used to talk with opposing counsel about something other than your case.
Use the Phone
Rather than sending an email, talk on the phone. One lawyer I know makes a phone call to talk to an opponent, especially senior members of the opponent’s team. He is always posturing toward an eventual settlement, and he believes a good working relationship with the other side will help. Rather than diving into the substance of his phone call, he begins with small talk. These calls sometimes evolve into long discussions that completely eclipse the initial purpose of the call.
Suggest Breakfast or Lunch
Another idea is to suggest breakfast or lunch. Do it at the beginning of the a case, even when you already know the opposing lawyer. If the opposing lawyer is from another city, suggest lunch when she is in town for the first motion hearing.
Do not worry about age differences. If you are a younger lawyer, it can be intimidating having a conversation with a lawyer who has been practicing for twenty years. But many older lawyers like these exchanges. In fact, since they won’t be suspicious of your motives like younger lawyers can be, older lawyers will be more receptive to your overtures in the first place.
Find Other Opportunities to Talk
Seek out the lawyers on the other side of your cases at bar functions, CLEs, and other legal gatherings. If the casework takes you out of town, invite your opponent to dinner or share a taxi to the airport.
Allow a Friendship to Develop
You can call me maudlin or naive, but I think the practice of law would be more enjoyable if lawyers regularly developed friendships with their opponents.
In my first job out of law school, a partner asked me to draft a letter to the other side about a discovery dispute. I chose what I thought was an appropriate tone of unabashed rudeness, and wrote the opposing lawyer that I wasn’t going to budge.
The partner scolded me, mostly for my tone. He said something along these lines: “At this firm, we deal with the same lawyers again and again. Find a way to get along. You might be working with those same lawyers for your entire career.”
The partner was right. One lawyer I know has been litigating railroad cases against the same opponent for nearly two decades. These two opposing lawyers now travel together to depositions and settlement meetings, butting heads during the day but socializing at night. While they still represent their clients with the required “zealous advocacy,” the tension and stress that goes along with their cases is eased by their friendship.
Don’t Start Fights, and Don’t Fight Back (Very Often)
If you are taking steps to develop good relations with opposing counsel, you probably won’t be starting many fights. The flip side of the coin is a bigger challenge when your opponent throws the first punch. You should pause before giving in to your anger and fighting back.
A fight is almost always nothing but a distraction meant to get you off track, which is one reason some lawyers like to be bullies. To avoid being drawn into a fight, it helps to know your trigger points. For me, it’s not misbehavior during depositions or cheap shots at motion hearings. Instead, it is condescending letters from BigLaw litigators who want to lecture me about the facts of my case or what they think is the applicable law.
When I get a letter like that, I want to respond with one of my own. But if I recognize the letter as a trigger point, I’m able to pause before reacting. Rather than writing a second nasty letter, I call the offender on the phone and say, “Let’s agree to disagree” or “We’ll have to see what the judge thinks.”
With this said, you can’t let the other side’s intimidation guide your litigation strategy. When dealing with difficult opposing counsel, sometimes you have to punch a bully in the mouth. This is where your efforts to be collegial might break down.
Some Lawyers Don’t Want to Be Your Friend
Not surprisingly, it’s the type of lawyers who start fights which will be most resistant to having a collegial relationship. For these lawyers, that’s how “litigation” is defined: refusing to say yes to anything you propose. If they ever give you an inch, they consider it nothing less than a personal failure.
It’s easy to feel sorry for lawyers whose only claim to fame is their reputation for being difficult. But you have a reputation too, and a reputation for getting along is a valuable commodity. Continue to work at it, and you will see the benefits.
Featured image: “Group of happy business people discussing papers at meeting ” from Shutterstock.