How an Attorney Can Be a Good Adversary
I have been writing some criticisms of other attorneys. No matter how well intentioned, this can seem mean spirited. For a change, I shall write what I think it takes to be a “good adversary”, that is, an attorney who is professional and effective. Every good lawyer likes to encounter such an adversary.
1. A good adversary will be measured in her criticism of other attorneys and not be too quick to call them or their clients “liars”. This is a trait I have yet to master. I do not use the “L” word, but even my measured words, filled with my own self assurance, tend to come across as too harsh. I continue to work at this weakness.
2. A good adversary prepares his client well. He does not hide the ball, but diligently helps his divorce client identify and inventory assets and debts. This includes 3 years of state and federal income tax returns, with all schedule, a printout from the employer of all retirement benefits, life insurance, savings and credit card account balances, vehicle and personal property values, account numbers, and account balances.
3. The equivalent to this information in personal injury claims is all medical bills and records, documentation of lost wages and benefits, client diaries, and “lay witness letters” describing the claimant’s behavior before and after the collision.
4. A good adversary, when assigned to do an order by the Court , completes that order in less than a week, copies the other party, allows input when possible, and does not unduly slant the draft order, or embellish it.
5. On the other hand, a good adversary will not unduly object to an order that captures the Court’s meaning in order to quibble over unnecessary details.
6. A good adversary does not “play dumb” by pretending not to understand the plain meaning of a “discovery request” sent by the other side.
7. A good adversary will require a sincere effort by the client in gathering the information needed to answer reasonable questions. This exchange of information is called “discovery”. It is not fair to say we do not have certain information if a trip to the bank, or several phone calls, can obtain the information.
8. A good adversary will address the legitimate concerns of the other party, whether contained in letters of complaint or brought up in mediation.
9. A good adversary avoids “Hiding the ball” by denying events the other party knows happened, or denying a problem, such as alcohol or drug abuse, that requires candor to solve.
10. A good adversary will respond promptly to letters of complaint from the other side. He should insist on honesty from his client, keeping in mind risks associated with “self incrimination”.
9. The responsive letters should focus on facts, especially provable facts, clarifying any misapprehension by the other side, apologizing where appropriate, assuring that corrective action has been taken, and denying false accusations without histrionics or overreaction.
10. These responses may fairly include counter-criticism but NOT to justify bad behavior by the attorney’s client. For example, just today a party attempted to justify allowing her son to miss his remedial English class by saying he had “already missed 3-4 sessions” while under the care of the Father. Some excuse!
11. A good adversary appears at mediation and trial well prepared, having provided copies of key exhibits to the other side.
12. A good adversary comes to settlement meetings with IDEAS. That is, ideas that have a win win component, or strong support, in the law or the facts. e.g. A claim for rehabilitative spousal support will help the custodial parent get more education and training so that parent will better be able to support the parties’ children.
13. When the claim is for permanent alimony, copies of the Alimony Statute should be brought to the hearing, to help the mediator explain the 19-20 factors the WV Legislature and Supreme Court have identified and applied in determining the duration and amount of alimony. When alimony is awarded in accordance with the law, it is often fair.
14. A good adversary is honest with the Court and her own client. Encouraging the client to believe the other counsel is vindictive, incompetent, or dishonest is problematical even when true. Most of the time there is something meritorious in what the other side is attempting, or some reason to do what they are doing. The good adversary explains, explains, explains, until the facts sink in. When the client is too stubborn to accept the truth, a parting of the ways may be necessary.
15. A good adversary tries to show respect for the other attorney’s professionalism, and tries not to take the bait when provoked by the other lawyer. This one is very tough for me. I keep thinking my 38 years of making mistakes and learning from them, should be respected by my peers, even the young “whippersnappers’, but they keep thinking that since they are young and smart, I should agree with them.
16. Most of us have not chosen this profession because we are shy, and both attorneys have to work hard so their own competitiveness does not get in the way of a successful negotiation.
17. In Court, frivolous objections such as “hearsay” or “relevance” are a waste of everyone’s time. An experienced judge knows “lawyer b.. llsh…t” when she sees it. On the other hand, a good advocate facilitates the testimony of friendly witnesses, or his client, WITHOUT testifying himself.
18. A good advocate does not misstate the witness’s previous testimony in order to trick him. An attempt to twist the witness’s statement, or mislead the jury, will not impress them.
19. Opening and closing statements, to a Jury, Judge, or Mediator, should be concise and accurate. The opening should be the roadmap for that party’s case. The closing should include a fair summary of the testimony and cogent argument why the fact finder should rule in that party’s favor.
20. A good adversary keeps long term goals in mind. A pre-litigation mediation can save BOTH SIDES tens of thousands of dollars of litigation expenses. Insurance companies can be persuaded by such logic.
21. DON’T reflexively accuse the defense counsel of resisting settlement to earn a bigger fee,
even if it appears to be true.
22. In Family Court, an outcome that is fair to both sides is usually better for the children. Barring serious domestic abuse, and some drug or alcohol problems, each party deserves to be treated with dignity and to leave the Court knowing the Court carefully considered their point of view.
23. Good adversaries bill fairly, and tender detailed, itemized bills, when seeking an award of attorney fees.
24. And, a good adversary follows the spirit of Rule 11 of the Rules of Civil Procedure, which prohibits frivolous pleadings and lawsuits. The lawyer for the party receiving such a pleading, should give the offending lawyer plenty of notice to clean up her act. Twice recently, I saw the lawyer had overstretched the client’s position. In one instance, the other lawyer withdrew the pleading without having to admit any big mistake. In the other, there was still plenty of “fuss and fury”.
At the heart of these suggestions are honestly, competency, humor, compassion, and intelligence. We can all improve in these areas if we try.
This post was written by Burton Hunter