In litigation, as in life, we sometimes must do what’s uncomfortable. It’s a part of growing up and growing in your practice. Did I want to apologize to Katie Costanza in the fourth grade when I accidentally broke her glasses playing four square (yes, there was a game before the app)? No. She knew the risks. And I certainly didn’t want to go to her house and do it in person.
But, guess what? I did. My parents made me do it. I was better for it then, and I’m better for it now.
Litigation is no different. Do I want to call opposing counsel after he sends me a “nastygram” about some discovery issue or another? No. He’s wrong. He should read the rules more carefully. All my objections are perfectly tailored to address his nonsensical requests. But I do it anyway. Why? Why not just send an email, a text, or go on a Twitter rampage? It’ll feel so good. Sure, my client won’t benefit, but I’ll feel like a big shot. Rather than an e-tirade, a quick phone call is often much more effective.
We Are All Human Beings
We are innately social beings who are happier the more we interact with those around us. The Grant Study is perhaps the best proof on the subject. It is a federally sponsored study on human development that began in 1938. It started out tracking every aspect of the lives of Harvard University men, periodically assessing the men’s physical and emotional well-being. The original study teamed with a similar study that was following a group of men from inner-city Boston since the 1940s. Harvard professor Robert Waldinger took over the study in 2003. A trained psychiatrist who focused his own research on relationships, Waldinger added to the dynamic of the study by inviting the wives of the men (those who were alive at the time) to evaluate the impact of their marriages on physical health. The study is now turning to study the children of the original participants.
What does the study tell us? The participants who were satisfied with their relationships were ultimately happier and healthier. “Good relationships keep us happier and healthier. Period.” Waldinger said in his TED Talk. He added, “Social connections are really good for us. Loneliness kills. People who are more socially connected to family, to friends, to community are happier, healthier and live longer than those who are less connected.”
The lesson is that, as human beings, we crave interaction, and we need good relationships to be happy. Sometimes our interactions are unpleasant. In the world of anonymous comment boards and TV lawyers, slinging mud is as easy as clicking a button.
But it’s still a bit more difficult to be uncivil on the phone. For example, I have a colleague who was involved in a real estate closing and after asking what she thought was a benign question, received an expletive-laden response. She took my advice and called the attorney back. Guess what happened? The deal closed. Why was he so nasty? He had a bad day. It was unrelated to anything she did. He apologized for the email on the phone call and they moved forward.
Pick up the phone, because we humans are imperfect creatures who have bad days. It will help in the short term, and it will help to maintain those relationships we so desperately need (yes, even with opposing counsel).
It’s a Matter of Interpretation
Brevity is the essence of clarity. Some of us, though, try to make jokes in our communications with opposing counsel or to write sarcastically. That doesn’t always come across as intended on the page. What is hilarious to you might not be to someone else. Making a phone call largely eliminates the risk of miscommunication, though it’s not perfect. After all, you cannot see the person and read her body language—but it’s better than an email or a text, by a long shot.
Avoid misinterpretation and pick up the phone.
Most Importantly—It Will Benefit Your Client
The name of the game in our profession is client service. Always has been; always will be. Sometimes that requires us to be hard-nosed and to take a stand against further intrusion in our client’s businesses or lives. Often, however, that requires us to move the ball forward and resolve the minor fights so that we can focus our attention and our client’s attention (not to mention the judge’s or jury’s attention) on the main issues.
I’m not saying don’t fight for your client. I’m saying fight smart for your client.
Sometimes fighting smart requires you to ignore opposing counsel’s invitation to fight the minor fights. Other times, I realize that may require starting a minor fight of your own. It’s all part of the dance. But our clients will be better served (and will be good return customers) if we resolve their issues promptly and below budget. So that means we should focus less on the minor fights and more on the main issues. If we pick up the phone to deal with some of the minor issues, we can reach consensus on at least some of the points early on.
Did you receive a 30(b)(6) notice that defined the scope of testimony as “Everything in the history of the company, this matter, or other related matter”? Instead of pulling out the standby motion to quash, I submit that you should pick up the phone to see if opposing counsel could amend the notice. Perhaps he was in a hurry or there’s some other reason he was imprecise. Your client will thank you, and you can focus your attention elsewhere.
The list of reasons above is enough incentive for me to pick up the phone when I’d rather not; however, it does not encompass all of the intricacies of practice that contribute to the decision to pick up the phone. Try it next time. It might save you a headache, and it may help move your case along. I thank you, your clients thank you, and your future self will thank you.