YourABA May 2013 Masthead

Professional courtesy as a litigation strategy

Extending professional courtesies is a smart litigation strategy. It will advance your client’s cause and conserve the client’s resources, said Andra Barmash Greene of Irell & Manella LLP in an article in Litigation.

“Extending professional courtesies makes litigation more manageable ... and, more often than not, saves expenses for the client.”

What is “professional courtesy”? It applies to myriad behaviors, including being civil in communications, granting appropriate continuances when necessary, cooperating in discovery to the extent possible, admitting what you have to admit and being truthful in papers filed with the court. “Professional courtesy does not equal weakness,” Greene said. “To the contrary, it is a sensible approach to litigation. As I explain to my clients, extending professional courtesies makes litigation more manageable, avoids ‘tit for tat’ disputes, pleases the court, is often required by local court rules, helps everyone’s reputation and, more often than not, saves expenses for the client.”

Professional courtesy is also not about simply rolling over and doing whatever your adversary wants, Greene said. “Professional courtesy does not mean being soft or letting people off the hook when it may hurt your client’s position,” she said. “This point is important to share with clients who like fire-breathing lawyers — that being professional does not mean you are weak.”

The following are areas in which issues of professional courtesy, or lack thereof, arise:

Communications between counsel. “Lawyers are often rude to each other in correspondence or court filings,” Greene said. “The proliferation of email communications has only made it worse. Despite short-lived ego gratification, I do not believe endless nasty correspondence is the proper way to communicate with opposing counsel.”

Another common practice is endless letter-writing battles, which often denigrate into name calling and ad hominem attacks, Greene said. “Clients can end up spending a great deal of money on these letters, which do little to advance the litigation in any meaningful way,” she said. “When I find myself in a letter-writing battle that is devolving into a ‘did not, did too,’ I typically send a letter stating that it is not a productive use of my time or my client’s resources … that I will not be responding further and that my lack of response should not be construed as any sort of agreement with or admission to the assertions in the letter. The poison pen letters typically stop after that, along with the charges to the client for each piece of correspondence.”

With email, if you have written a harsh message, wait before sending it, Greene advised. “More often than not, I tone it down or delete it when I have cooled off,” she said.

Extensions and continuances. Rarely has Greene had a case in which the client did not need some extension. “Unless one has a crystal ball, it is impossible to predict how events will unfold in the course of litigation,” she said. “Therefore, it is wise to give reasonable extensions when doing so does not harm the client’s position.”

Of course, professional courtesy in granting extensions should not be limitless. Many lawyers use repeated requests for continuances simply as a tactic to delay an inevitable bad result, Greene explained.

Discovery. “Discovery is an area fraught with opportunities for bad behavior and gamesmanship,” Greene said. “Much has been written about Rambo tactics. Frivolous objections, scheduling games, refusal to produce documents and refusal to admit the obvious are all part of the territory.”

Discovery fights prolong litigation and add to the expense often substantially, she said. “This is another area where professional courtesy can advance your client’s position and save … often hundreds of thousands of dollars,” Greene said. “It, too, requires client education.”

At the outset of a case, she typically goes over her discovery strategy and practice and why cooperation can help meet the client’s interest. “First, the fact of litigation means that there is a certain amount of discovery to which the other side is entitled,” Greene said. “This is part of the process, like it or not. Second, courts hate discovery disputes. Courts do everything to avoid them or to punish those who do not cooperate in discovery.”

For more tips, see the full article. Litigation is published quarterly by the Section of Litigation.

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