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A Case for Bending the Rules: When Flexibility is Smart Advocacy

Joseph V. Schaeffer

A Case for Bending the Rules: When Flexibility is Smart Advocacy
Tim Kitchen via Getty Images

So much of pretrial practice is rule-based: Rules determine everything from how a defendant is served to how the parties can prepare their case for trial. But as every litigator knows, some rules are more important than others. And as a recent case out of the Eastern District of North Carolina shows, a willingness to compromise on the minor rules can avoid embarrassment in front of the court.

The dispute in White v. Vance County, No. 5:19-CV-00467, was trifling on its face: The parties could not agree on whether discovery should be served by email or U.S. mail. But it had significant implications for the plaintiff's counsel, who had made the initial request for email service. Because she lived with an immunocompromised child, she feared that serving discovery by U.S. mail would increase the chances that her family would be exposed to the coronavirus. So the plaintiff's counsel took her dispute to the court and asked it to declare that service by email was proper, compel the defendants to serve responses, and sanction the defendants' counsel.

The court demurred, finding that the defendants' counsel had the right to refuse service-by-email under the rules. At the same time, it exercised its authority over discovery to authorize service-by-email on a going-forward basis. And it expressed its clear frustration that the parties could not reach an agreement on this simple point: "[a]ccomodating reasonable requests from and acting collegially towards opposing counsel is not a sign of weakness or a betrayal of a client's interests."

It is impossible from this single order to assign fault for the dispute having reached this point. Was the defendants' counsel reacting to earlier slights from the plaintiff's counsel? Or was the obstinacy wholly one-sided? The answer is probably beside the point. If the refusal by the defendants' counsel to refuse service by email was unreasonable, the demand by the plaintiff's counsel for sanctions was unjustified. Both attorneys appear to have diminished their standing with the court. Offering opposing counsel reasonable accommodations on the rules is thus not just a professional courtesy, it is smart advocacy.