David R. Keene II
David R. Keene II is an associate with Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., in its Tri-Cities , Tennessee/Virginia office, and can be contacted at dkeene@bakerdonelson.com.
During the course of your career you will encounter opposing counsel who will frustrate you. Perhaps they are overly argumentative, fail to follow through on their promises to provide certain documents, file motion after amended complaint after pre-response discovery request after motion, or are simply poor practitioners. When you encounter such attorneys, there’s nothing you would like better than to point out their ineptness or uncooperativeness in pleadings.
As satisfying as that might be, there is nothing to be gained by attacking opposing counsel in pleadings. Below are five good reasons not to do it.
1. You’re a professional. The first, best, and only necessary reason not to attack opposing counsel in writing is that it is unprofessional. As an officer of the court and licensed professional, you should rise above petty personal disputes. A professional does not spend time worrying about how to work in a jab at opposing counsel in pleadings; rather, a professional focuses on serving client interests and allows the strength of written arguments to speak for themselves.
2. You’re creating a permanent record. There will always be a record of your attack on opposing counsel. Anything in writing can be sent around courthouses, cities, and the world with the click of a mouse. If your document isn’t already in electronic format, it can easily become so; in short time your document with the nasty little poke you took at opposing counsel can be available on the World Wide Web. If your case is in federal court, you will have to submit it through ECF, which makes it that much easier for all interested persons to find what you’ve written.
3. Opposing counsel will NEVER forget what you’ve done. Maybe opposing counsel is completely unprofessional and “deserves” the insult. Then again, maybe counsel is just having a bad month or personal problems, and the last thing that the attorney needs is your attack in writing. Rest assured, your name will never be forgotten, and in the future, you can forget about receiving reciprocal “professional courtesy.” You need additional time to file a response? Tough, a deadline is a deadline. You don’t want to miss your kid’s soccer game, and you need to reschedule that deposition? Too bad. You’re swamped with work and need a break? So sorry. Take a jab at someone in writing, and you’ve made a permanent enemy.
4. Other attorneys will read what you’ve written. Over the course of your career you will want fellow attorneys to refer clients to you. Further, you will want a positive reputation when leadership positions in the community or bar become available. You want to be known as a tough but fair lawyer, not an inflexible or contentious one. By taking shots at opposing counsel in writing, you’re blackballing yourself from future opportunities.
5. The judge is smarter than you think and knows who’s causing trouble. Young attorneys often think that the court is unaware of who is creating problems in a particular case or who is being unnecessarily contentious, and they feel the need to point it out. The court, however, is smarter than you think. I found this to be true a few years ago when I was engaged in a discovery dispute with opposing counsel, who was interfering with my third-party subpoena. As is my habit, I faxed and mailed documents to the addressee, but only mailed documents to those receiving copies. I copied opposing counsel on a letter; thus, he only received a copy in the mail. When opposing counsel realized my practice, he went ballistic and accused me in writing of committing fraud and lying to the court. He copied the court on the letter, despite the judge’s written instructions that he not be copied on correspondence. Following a conference call with the judge to discuss the discovery dispute, he issued an order that opposing counsel stop interfering with my subpoena. The last line of the order included a single sentence, reminding counsel that the court is never to be copied on correspondence. Clearly, the court knew who the troublemaker was without me taking a shot.
Remember, in all aspects of your practice, not just pleadings, it’s always best to be professional. You’ll be well-served by always taking the high road.
• Dealing with Difficult People. PC # 1620030. 2004.
• Letters for Litigators: Essential Communications for Opposing Counsel, Witnesses, Clients, and Others. PC # 5150291. 2004. General Practice, Solo and Small Firm Division
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