So You Think You Want a “Hardball” Lawyer?

by | May 1, 2013 | Business & Commercial Litigation, Litigation

Many clients think that it advances their interests to have a “fire-breathing” lawyer, one who takes no prisoners and utilizes a “scorched earth” policy when representing them in litigation. In fact, nothing could be further from the truth. Extending professional courtesy to the opposing attorney is not just frequently required by the ethical rules – it’s usually good business.

Make no mistake about it, professional courtesy does not equal weakness. It is not a sign of weakness to accommodate a reasonable request for an extension of time to respond to discovery requests or file a brief. Such courtesies will both advance the client’s interests and conserve the client’s resources in several ways.

First, if the client is paying for representation on an hourly basis, the endless exchanges of nasty e-mails, faxes or letters that characterize “hardball” litigation can get very expensive. The client is basically paying for the lawyer’s ego-gratification by expending resources that could be better spent advancing the issues in the litigation. Depleting the client’s resources without materially advancing the client’s interests is bad business.

Secondly, it is impossible to predict how the issues will develop in litigation with any degree of certainty. As a result, it is likely that at some point, you will need an extension of other accommodation regarding a response due, a hearing to be scheduled, the date of a deposition, etc. The best way to prevent unnecessary battles over these inevitable scheduling issues is to be receptive to requests for reasonable accommodations by the other side. The willingness to accommodate the other side is not limitless, of course. And it should never place the client at a material disadvantage. But as long as there is no disadvantage, agreeing to reasonable requests relating to scheduling matters insures that when the client needs such an accommodation, the other side’s agreement will be more readily forthcoming. It is much more economical to handle these issues by agreement of the parties, rather than having to apply to the court for a ruling.

Third, many clients do not realize that judges appreciate it when the attorneys involved can work things out among themselves, rather than asking the judge to take time from his busy schedule to rule on matters that, in the grand scheme of things, are not all that significant. Judges make many rulings during the course of a case, and the vast majority of them involve the judge’s exercise of his or her discretion. The easiest way to get on the judge’s bad side is to require court time to decide matters that ought to be the product of agreement between counsel. The lawyer who is unwilling to extend professional courtesies, and as a result, takes up a lot of the judge’s time, frequently finds him or herself on the losing side of many of these discretionary rulings.

Finally, civility in dealing with the other said definitely pays dividends in the long run. Treat the opposing party with hostility and discourtesy in a deposition, and you’ll find that your witnesses get treated the same way when their depositions are taken. Adopt a hostile tone in your court filings, and the judge will be unfavorably impressed. Evasive and incomplete answers to discovery requests multiply the cost of litigation because they generate motions to compel, which have to be defended, and they encourage like behavior by the other side.

In summary, extending professional courtesies to the other side and acting at all times with civility should be part of the overall litigation strategy. Clients who think that they want a hard-nosed, unyielding lawyer representing them do not understand the negative effect such behavior can have on their case. It is up to the lawyer to educate the client by explaining to him or her how such tactics are not in their long-term best interests and do not materially advance the course of the litigation. Most clients, once they understand that acting with professional courtesy will save them money and enhance their chances of a favorable outcome, are grateful that their attorney resisted their initial desire for a “hardball litigator.”

More about Robert F. Parker

More about Robert F. Parker

Bob is an Of Counsel attorney at BCC and is resident in the firm’s Merrillville office. His practice is concentrated in commercial, professional liability, and personal injury litigation.