A rookie mistake and courtroom cooperation – litigation, mediation & arbitration
To print this article, all you need to do is register or log in to Mondaq.com.
A rookie mistake sheds light on how collaboration between opposing attorneys can lead to better client results and tips on how to get there.
Ed Lyons, a corporate litigation attorney with Jones & Keller, has over four decades of litigation experience in difficult cases in Colorado and the United States. As a young employee just entering the legal profession, he remembers how he kept his own calendar for a long time.
For some mysterious reason, Ed made a rookie mistake; he missed an important due date in responding to a complaint. The agony of the situation woke the young lawyer the night Ed realized what position he had put his client in. In theory, his client would be in default with the lawsuit.
As Ed relates, he gathered up the courage the next morning and called the opposing attorney, a prominent, well-known senior litigator in Denver. When the conversation started the agent revealed who he was and before explaining the reason for the call, Ed remembered receiving an answer he never forgot. The opposing lawyer simply said, “How much time do you need?”
The grace bestowed on this young lawyer decades ago may no longer take place in today’s more antagonistic and hostile legal environment. We live in a time when mistakes are exploited to win and public figures are shooting cheap shots at the judiciary in ways that undermine the American judicial system.
In 2015, the Code of Civil Procedure was amended to make it clear that these standards, which regulate the work of lawyers, should be interpreted and applied liberally “in order to ensure the fair, quick and inexpensive resolution of any complaint”.
While the rules themselves contain numerous technical details and deadlines with severe penalties, all rules are to be interpreted in such a way that cases can be resolved quickly and efficiently according to their merits and not after exploited “torch” gaps in the rules.
Still, courtesy in courts, lawyers, and judicial practice in general has steadily declined. The relationship of the members of the Bar Association to one another in the area of litigation has changed gradually, but significantly, with the trial lawyers becoming more combative and less collegial.
Opposing advice doesn’t have to be the mortal enemy. Not only will more collaborative relationships help lawyers live longer – less stress, better health, more laughter – clients can benefit from better negotiation and faster, less formal processes that are badly needed to break the pandemic backlog of legal proceedings.
Manipulation of the system
Sharp practitioners manipulate the system. In Colorado, local regulations require a substantive decision on the matter before most applications can be submitted. Our law firm recently attempted to allow a dismissal motion for non-delivery of the case because the defendant only received the complaint by US mail. Our law firm took over the supervision of an opposing attorney and thought a transfer would put the ship back in order.
In response, the rival attorney stated that he was “denied” our motion without disclosing that he had already applied for and received a court order authorizing replacement of service by US mail – a fact we did not have could know if he had not shared the court’s order.
In this case, a filing practice was employed that wasted the client’s time and money and weighed on the judiciary that had to rule on the application at a time when the courts are grappling with an unprecedented backlog from the Covid-19 pandemic.
Judges generally do not like this type of manipulation, nor do they appreciate disputes between opposing attorneys. Enabling a judge to scold unruly and petty lawyers is rarely good for either party.
This type of inconvenience can put off young talent who might otherwise be interested in legal prosecution. Attorney James Goodnow, in his statement, describes why his children do not want to become lawyers, a litany of unpleasant behavior in the field of law that ends with a censure of justice. “The classic notion of the honored, noble lawyer is fading, and with it much of the romance associated with the profession,” Goodnow wrote for Above the Law.
How can we turn the tide and reclaim the cloak of civilian behavior that cheered us on by Atticus Finch in the court drama To Kill a Mockingbird? And do we want to be great lawyers capable of negotiating with people and leading them to the best results? And turns children into lawyers?
Turning the tide begins with the cooperation and the usual courtesies that we show others before, during and after the negotiation with the greatest success.
Be professional. Lawyers are the professionals in the room and should act that way. Customers tend to be too exhausted to see beyond their own interests. Things like deciding when to make short time extensions shouldn’t be made by customers; rather, it is a courtesy that should be spread between professionals.
Be authentic. Whether in the courtroom, in dismissal or in arbitration, authenticity creates connections, openness and compassion. It is important to be sincere to learn the truth from witnesses, and a few kind words can be the motivation a witness needs to keep their story flowing. Avoid scripting instructions and instead listen and adapt to what you hear.
Use simple language. Only trained lawyers understand lawyers. Use understandable terms and descriptions to effectively communicate with clients, witnesses, and opposing attorneys.
Let go of the ego. The case concerns the customer. That means letting go of status, comparative value and competition, as Andy Benjamin, lawyer and psychologist, writes. Lawyers should be confident in court but divert attention from themselves so that attention is focused on the gist, facts and circumstances of the case.
Be healthy. Lawyers are busy, especially when they’re good. All but the most uncomfortable lawyers can feel awful after bad trials. Protecting the well-being and health of lawyers should be a professional goal that can be achieved through thoughtful gestures. Recently, a Denver judge set a trial date for more than a year because both lawyers were female and pregnant. Extension for personal reasons is not common in the courtroom, but it is a professional form of courtesy.
Pay attention to lasting impressions. Under pressure and in the heat of a lawsuit, it’s easy to argue with an opposing lawyer to get a win. Every professionally comfortable attack – be it criticism from the opposing lawyer, the judiciary or the courts for a disappointing verdict – has a negative effect on the public perception and appreciation of the courts and our profession.
Focus on content issues. Leave little things outside of the courtroom. During a recent testimony on a sexual harassment case, I disagreed with questioning the opposing attorney based on his characterization of a particular woman as “pretty”. The lawyer argued for three minutes to get me to agree that the woman was pretty. In this case, the merits of a sexual harassment dispute had nothing to do with a person’s physical attractiveness, and the reasoning had changed from litigation to personal dispute.
With the COVID-19 pandemic, social unrest and political uncertainty, we have entered an era where people are looking for institutions that work. The legal profession must be one of these institutions. Precisely for this reason, now is the right time to practice self-discipline, courtesy and professional behavior for the job.
Society must believe in the strength and solidity of the legal system. Lawyers whose livelihood depends on the institution have a legitimate interest in maintaining the character of the profession.
Nicole Westbrook is a corporate litigator and shareholder at Jones & Keller. She has argued on both sides of the aisle on cases ranging from defamation to breach of duty, fraud, contractual disputes, real estate disputes, and everything in between. On faculty with NITA and a CLE teacher, Nicole believes that hard-fought cases and focusing on winning doesn’t mean being evil in the courtroom. Westbrook can be reached at [email protected].
THIS INFORMATION IS NOT INTENDED AS LEGAL ADVICE. SEEK SPECIAL LEGAL ADVICE BEFORE ACTING.
The content of this article is intended to provide general guidance on the subject. Expert advice should be sought regarding your specific circumstances.