How to Communicate with Opposing Counsel

The prevalence of smartphones and e-mail has made e-mails between opposing counsel extremely common. So prevalent, that I can think of at least one case where I never spoke with opposing counsel.

The next time you need to communicate with opposing counsel, consider picking up the phone and get to know who you are working against (and with).

E-mail is not always the best way to solve an issue

Believe it or not, picking up the phone can be a more efficient way to resolve an issue. Recently, I needed to discuss a settlement agreement with opposing counsel. I called and left a voicemail, asking for a callback. Within minutes, I got an e-mail discussing the agreement. Sticking to my guns, I called back again, expecting opposing counsel to answer. Instead, I got another e-mail two minutes later. This happened at least one more time before I gave up all hope that opposing counsel would actually talk to me.

I’m not sure what was going on, but it took I think a combined fourteen e-mails to take care of the issues. I cannot say for sure, but I think a 5-10 minute phone call would have resolved everything.┬áThe next time you need to hash something out, pick up the phone. Assuming the other side is willing to talk, you can likely resolve things faster and more efficiently.

Phone calls give you a chance to get a better feel for opposing counsel

I admit, I prefer talking on the phone because I’m a detail guy and I’m a litigator. Every little thing I can learn about opposing counsel is important. If someone comes across as a mean jerk in e-mails, but is friendly over the phone, that is an important distinction to know. Maybe they just put on a show via e-mail for their client. Or maybe their bark is bigger than their bite. Either way, that’s something I want to know.

Even more important, it will likely enhance civility between attorneys. You might not become best friends with opposing counsel, but you likely learn that they are not the nasty person you imagine them to be. The more you know about a person, the harder it is to dislike them. And if it turns out they are a big nasty jerk, you can always go back to sending e-mails.

Save your anger for something else

Sending angry e-mails to opposing counsel is a tempting and dangerous proposition. Those e-mails are written in stone and may find their way into a motion from opposing counsel down the road. Plus, I guarantee when you re-read that angry e-mail an hour later, you will regret it.

If you find yourself about to fly off the handle, don’t hit send. Leave the e-mail and respond to it later. Go talk to a co-worker and listen to them when they say “just let it go.” Angry outbursts rarely lead to anything good, and most of the time make you look silly and even ridiculous.

Keep your cool and work towards building a relationship with opposing counsel—it will payoff in the long run.


1 Comment

  1. Avatar Susan Gainen says:

    This is for law clerks: How NOT to communicate with opposing counsel
    Even if your boss appears to be on great terms with opposing counsel, that does not mean that you can pick up the phone and ask that lawyer for random documents or witness phone numbers.

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