That’s Funny, You Don’t Act Like A Lawyer

Please excuse if this blog posting is more of a rant than a commentary on the state of counsel-to-counsel relationships. It’s just that I feel I've been here before, namely when I wrote for this topic for The Recorder and the American Bar Association Journal in 2006. In that essay, I discussed the countless advantages of a cordial relationship with opposing counsel. These days, I often judge the professionalism of the attorney on the other side by how willing she is to grant me an extension, speak openly with me about the issues in the case, or even admit her cases’s flaws. The truth is, the more that opposing counsel and I can relate to one another as human beings, the better our shot of having a mutually satisfactory outcome for our clients in the matter at hand. Sometimes I think of it this way: the more I can avoid acting like a stereotypical lawyer, the better lawyering I’ll do. But then I always run into opposing counsel who doesn't share my views.

Take last week for example.  I had a hearing before the DLSE in a wage and hour case. The opposing counsel was from an extremely reputable firm, and I had high hopes at the start, but I was quickly disillusioned. It started with opposing counsel turning in a brief to the commissioner that contained confidential settlement language my client agreed to in order to receive a payment from a co-defendant. When I pointed out her mistake, counsel did not apologize or express any recognition of this huge gaffe. Even if the regular rules of evidence don’t apply at a DLSE hearing, what about rules of professional courtesy, not to mention efficacy? How persuasive can a document be that my client signed simply to get a payment from a defendant? And does that mean I get to tote the payment around as evidence of the defendant’s unadmitted but obvious liability in the matter? Seems to me that counsel was doing something that could be a real slippery slope for both of us.

The final straw, however, was when the labor commissioner would not permit me to go to the bathroom because it meant taking a five-minute break during the hearing. This was a hearing, by the way, that was three hours in length, a personal record at the DLSE. Now, had roles been reversed, I would have sweetly chimed in to tell the commissioner that I’d shorten or forgo a few of my questions so that opposing counsel could relieve herself on the potty. I afford my two-year-old that privilege, after all. I would have also used it as an opportunity to bond with opposing counsel about how ridiculous the commissioner was being. But no, my opposing counsel met my request with a big sigh and eye rolling. Really? She couldn't even afford me the basic human dignity of not sitting for another two hours with a bladder so full that it was about to burst? What did I do to deserve that?

Many lawyers, like this one, seem to believe that to be a good lawyer, you need to be confrontational in the extreme, even when it serves no purpose and defies common sense. Do I need to tell you how often I come across this tactic and how baseless it is? All it did was serve to isolate me, make me angry, and be a lot less interested in trying to settle the case.

My mentor and pseudo-partner Rod Bushnell told me of a story yesterday where he had a very strong plaintiff’s case and an opposing counsel that was downright abusive in deposition. Eventually, Rod, who is the most ethical, hard-working, and kind lawyer I know, had to stop speaking to him. On the eve of trial, the case, which had been going on for at least a year, was settled in half an hour when this blustery counsel was replaced with a more seasoned and very respectful defense counsel from the same firm. There are advantages to being courteous. This is my plea to attorneys everywhere to remember that.