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December 07, 2005

The Client's "Professionalism" Rules For Litigation

1. We, your client, come first. Be nice, be professional--but if in doubt, in litigation, use the procedural rules. If you feel you know the lawyers you are dealing with, we will follow your advice and instincts. If you are in doubt about the opposing lawyers, or if it might compromise us to deviate from the formal procedural rules, please stay close to those rules. Frankly, we have been in business long enough to know that practitioners in your city are pretty much like lawyers in New York City, Sioux City or anywhere else. We know that some lawyers at times transform zeal, advocacy and trying to serve the client into over-lawyering, discovery abuse and outright dishonesty. On rare occasions, we have even seen opposing counsel hide a document, or get a witness to lie. It happens. So if you are unclear about how to respond to such tactics, use the rules.

2. If you can develop an amicable working relationship with opposing counsel, please do so. If you can do this, it will save us time, money and goodwill. This is also true of your relationship with government attorneys who represent administrative agencies in regulatory matters.

3. Please move this matter along. At first, please use the deadlines in the procedural rules. If someone asks you for a two-week extension in discovery, and you believe all he or she needs is an extra week to produce the information or witness requested, tell opposing counsel that a week is enough time. (We will consider filing a motion to compel production.) We have an interest in resolving this matter without more delays.

4. Be timely and substantive; practice "clean hands." Try to provide timely and good responses to opposing counsel's discovery requests and other deadlines. Do this whether or not opposing counsel does it.

5. If you have, or would like to have, a personal relationship with opposing counsel, that's fine, but don't let the relationship hurt us--the client. We don't care as much as you do about your maintaining or developing collegiality with other lawyers in your jurisdiction; in fact, we could not care less.

6. If opposing counsel shows animosity toward you for following the procedural rules and keeping things moving, that is tough. We hired you to represent us. We would like you to get this done. As your client, we seldom think that aggressiveness and persistence are unprofessional.

7. Conduct your discussions with opposing counsel as if we were listening. No, this does not mean we want you to posture, or fight tooth-and-nail over every point. However, if it's in our interest to reduce a request for an extension of time from 45 days to 15 days, please do so. If we are the plaintiff in commercial litigation, we would like to secure our remedies as soon as possible. When we are the defendant, we would like you to obtain information about the plaintiff's case as soon as you can, determine our exposure and resolve it.

8. If you have followed these rules and opposing counsel starts making noises about professionalism and courtesy, please refer to Rule No. 1. Occasionally, a lawyer may attempt to turn professionalism into a sword. This is nonsense. If you have followed the rules, even aggressively, and opposing counsel whines hardball tactics, you are doing a good job for us. Don't let your adversary turn your sticking to the rules on our behalf into a red herring. We come first.

Posted by JD Hull at December 7, 2005 06:01 PM

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