Your personality matters—to clients, opposing counsel, and the court.
But saying it matters does not mean you always have to be the nice guy, or rollover, or do whatever client/opposing counsel asks for.
Avoiding unnecessary conflict is ok, but avoiding conflict for the sake of avoiding it is not. Learn how to say no to clients, opposing counsel, and the court.
Potential clients and existing clients
You can absolutely decline representation if a potential client insists on a course of action that you believe would violate the rules of professional conduct or any other law (see ABA Model Rule 1.16).
For example, in my practice, I usually run (quickly) when a client has a case and declares “I don’t care about recovering any money, I just want to get them and let them know what it feels like to be harassed.” First of all, that doesn’t pass the gut-check test. Second, it’s likely a violation of Rule 11. You can’t bring a case for the purpose of harassing the other party. In my line of work, the defense bar will figure that out pretty quickly and it’s the freeway to disaster-ville.
Another example is when consumers call me or meet with me and ask me “well, I don’t really want to sue anyone, can’t you just call them up and threaten them with a lawsuit?” Nope. First of all, there is potential liability for a SLAAP suit or defamation (something like that). It’s a pretty minimal risk, but it’s a risk. Second, from a strategic standpoint, there’s not much leverage in a threat. There’s leverage when a federal lawsuit requires a response in 21 days. But a nasty phone call? Not so much.
If you’ve been in business for more than one year, you’re in business because you are a good lawyer and know how to run a business. That means you do things the right way. Don’t second guess yourself, and definitely don’t let a client dictate your actions in your attempts to placate them and make a few bucks.
If you have a valid reason to a request from opposing counsel, then sure, say no.
Some young attorneys get tripped up because they assume they have to say yes to every request—otherwise opposing counsel will get mad or feel slighted. News alert: your duty is to your client. If it’s an issue that is worth taking a stand on, then you need to say no. Whether or not opposing counsel gets mad is irrelevant. If you say yes to everything, then you may just get pushed around, which can hinder your client’s case and/or position. It’s good to make an attempt to have a civil relationship with opposing counsel. But not when it undermines your ability to effectively represent your client. Believe it or not, you can actually do both.
If it’s something irrelevant or inconsequential, you don’t have to fight just to fight. Many litigators operate from the standpoint of “say no to any and every request from opposing counsel.” If that’s the image you want to create and you always want opposing counsel to try and make your life miserable, then go for it.
Lots of lawyers get tripped up in this area because of their own egos. To them, they view a request for an extension or a stipulation to _______ as a psychological mind game. If you say yes, the other side has a mental edge over you and therefore they have established dominance over you. Honestly, that’s how 10-year-olds think.
Your duty is to your client, not to your ego. If the sole purpose for saying no is to piss off the other side, how is that ultimately helpful to your client? If you think pissing off the other side repeatedly is the only way to get great results, you are dead wrong.
Early in a case the attorneys will likely know more about the facts than the court. That’s simply based on the amount of time spent with the facts. Most dockets are overloaded with cases, so many times the first hearing on a case is a judge’s first opportunity to really dig into the facts of the case.
The court will look to the attorneys for information on both the facts and the applicable law, especially if it’s an area of law that the court deals with infrequently. I have had hearings where I politely had to tell the court there were additional relevant facts (hopefully I said it more eloquently). Thankfully, I knew the facts and their cites and was able to point the court to the exact document/paragraph that backed up my assertion. And it definitely made a difference in the outcome. Same thing with applicable case law—you have to explain why a certain case doesn’t apply or should hold relatively little value.
Sure, I almost crapped my pants as a young attorney telling the court they had missed something or needed to reconsider based on _______. But that’s your job as an attorney: to tell your client’s story and zealously advocate for them (and sometimes crap your pants with style). In other words, the court is not automatically going to give you what you want. You need to tell then what you want, and why you want it.
I usually have a Rule 16 pretrial conference in federal court once or twice a month. It’s usually an informal meeting in chambers to discuss the case, timelines, etc. Some magistrates rubber stamp the report provided by counsel and some magistrates make radical changes.
When they start changing deadlines or limiting discovery, it’s time to put myself on the chopping block and explain why I need a deadline later, or why I need more discovery. Even with my relative inexperience, I’ve seen plenty of younger defense counsel on the other end, who sit back and don’t say a word. Even if they disagree, they are too afraid to voice their opinion. If you don’t say what you want, you will never get it. And if you’re not comfortable explaining your position to people in positions of authority (and sometimes telling them why they are wrong), you should hang up your lawyer shoes.
In the event that I did a poor job at expressing my views without all due respect to the court, let me be clear: this was written with all due respect to the court.