Wrestling with Pigs

By Jeffrey S. Tallackson

You shouldn’t wrestle with a pig—the pig likes it and you get muddy. Unfortunately, dealing with fellow lawyers can sometimes be much like that, and you usually can’t opt out. By training and personality lawyers tend to be intellectually confident and combative, focusing on defining issues and winning arguments rather than working for an accommodation the parties can live with. These traits and skills can be useful and appropriate in a litigation setting, but they can be a barrier to effective communication with co counsel or opposing counsel in other settings. In the real (read client’s) world, there are seldom prizes for identifying problems unless you also have the solution. You need different skills and a different approach when dealing with other counsel outside the litigation context.

Quite simply, there are only two fundamental rules to guide you in this process: Be civil, and focus on solving problems, not just identifying them. Simple civility may bring your difficult counterpart around to a more conciliatory frame of mind, and that in and of itself helps to resolve problems. Then, in seeking a solution, keep the big picture in mind—the goal is to further your client’s interests. For substantive problems that really affect your client’s interests, you must work with both other counsel and your client and be guided by your client’s interests. Such problems may indeed sometimes require a tough-minded approach, but even there civility and creativity are more likely to produce favorable results. Remember that even significant issues are rarely black and white, although lawyers often tend to think that way—there is often a shade of gray upon which parties can agree if there is a will to do so. Moreover, many problems are “lawyers’ issues” (most typically about such matters as drafting style, or one side’s ignorance or misunderstanding of the law or industry practices) that can generate defensiveness and rigidity but in which clients have no interest; they just want you to “handle it.” You should be the solution, not the source, of those problems. If you cannot, in a civil manner, persuade your counterpart of the merits of your position, try to strike a reasonable mid-point or even just accede to your counterpart’s preferences if they’re not really of substance. (Does it really matter if an indenture’s definitions section is at the end or the beginning of the document?) Help, instead of embarrass, your counterpart and you will also help yourself and your client.

Obviously, it’s not always possible to avoid wrestling with a pig, but you should at least be sure you’re not the pig. If others find root canal preferable to continued dealings with you, your prospects are poor regardless of your technical skills. Acting as a civil, nonconfrontational facilitator who not only identifies but also, where possible, solves problems does not mean you are spineless or fawning—it means you are a good lawyer effectively representing your client.

Jeffrey S. Tallackson practices banking and finance law in New York City. Contact him at .

Copyright 2008

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