At 1:00 p.m. Eastern on April 16, 2008, the American Bar Association will present a teleconference on "Current Developments in Business Litigation". Subjects will range from e-discovery and case evaluation to electronic exhibits and streamlining litigation. ABA members can participate for $9.75 and get an hour of CLE credit.
The ABA Journal previews the CLE program in short articles that the authors adapted from their chapters in Business and Commercial Litigation in Federal Courts. The ABA’s Section of Litigation and Thomson West published the treatise in 2005.
Presenters will include David Boies, Judge Shira A. Scheindlin, and — you guessed it — Blawgletter. Our article, from the chapter on "Techniques for Streamlining and Expediting Litigation", appears below.
Streamlining Litigation: Try to get along with opposing counsel
BY STEPHEN D. SUSMAN AND BARRY C. BARNETT
Maybe it’s just not obvious that one of the best tactics for streamlining litigation is simply to make an effort to get along with opposing counsel.
Some lawyers still conclude that the byproducts of contentiousness—higher costs and longer delays in particular—somehow work to their advantage and advance the interests of their clients. These lawyers may deliberately provoke opposing counsel in hopes of wearing them down, or at least distracting them and forcing errors. Lawyers may even resort to juvenile attacks and bombard opposing counsel with threats of personal sanctions.
By contrast, opposing lawyers who get along with each other make an enormous difference to the administration of justice. Their good relations translate into all kinds of benefits to the court and their clients: greater ease in scheduling conferences, discovery, hearings and trials; elimination of unnecessary motion practice and discovery fights; a focus on the merits; fewer misunderstandings and, as a result, less disagreement; far lower costs; a happier judge; and more confidence among the litigants in the fairness of the process.
Illustration by Stuart Bradford
Getting off to an amiable start doesn’t take much effort. Counsel on either side can encourage good relations simply by calling the opposing lawyers as early as possible to introduce themselves.
Make this a habit! That way you can truthfully tell opposing counsel that you always call regardless of which side you represent. You can propose, in every case, that both sides agree on a standard set of procedures before either side can figure out which will benefit more from any particular procedure. Offer to send opposing counsel a draft, and promise to consider any additions or changes they suggest.
The worst possibility is that the opposition says no. But you will have started the process of setting a cooperative tone and promoting trust. Those efforts increase the likelihood of entering into agreements that will streamline and expedite every phase of the case.
The court has a key responsibility for relations between counsel. While many judges hate the idea of refereeing arguments between counsel—and tend to think both sides share equal blame for their disputes—letting poor relations between lawyers fester creates more problems for judges in the long run. Abuses multiply. Communication vanishes. Justice suffers.
The judge must strongly discourage disputatiousness, personal attacks and displays of anger. And he or she must grapple with the problem early and consistently. Adopting codes of behavior helps, but it can’t substitute for personal intervention by the judge when appropriate. Indeed, judicial aloofness gives the appearance of sanctioning boorish behavior and worse. Consistently bad conduct by counsel reflects poor management by the court.
But persuading the judge to take action can be a challenge and may become impossible late in a case. As soon as you see a chronic problem, therefore, consider asking for a brief conference with the judge to establish expectations about professional behavior. Do not, under any circumstances, attack opposing counsel, even if—especially if—you believe they richly deserve it. A neutral but earnest request for the court’s assistance has the best chance of success. Most judges will take the hint.