‘Civil’ litigation

[This is the fourth installment of a six-part series on litigation management by Mr. Weiner, a dean of the Massachusetts trial bar. The next installment in September will focus on “maximizing the mediation process.”]

Upon discharge from the Marine Corps in the late 1960s, I went to work as a trial lawyer for a business law firm in Boston with a busy litigation practice.
For the next five years, I prepared and tried numerous matters, working with and against many different lawyers. I quickly learned from that experience that many trial lawyers were super aggressive and uncooperative on any issue, however large or small, substantive or purely process oriented.
And it made no difference as to the mode of communication, whether phone conversations, written communications, or face-to-face contact. The response, if any, was tough if not plain rude.

An expensive way to practice

At first, I thought that such an approach was normal and appropriate. But as I began to mature in those first few years, I realized not all trial lawyers conducted themselves that way, and, in all events, it wasn’t a particularly effective way to practice law.
While I understood that my clients were often desired aggressive representation in their litigation, at bottom they wanted to prevail, and acting like an 800-pound gorilla across the board to satisfy their lust for blood was not well-calculated to achieve that positive result. Indeed, it more often than not increased the cost to prosecute or defend and could adversely affect the result.

Be tough but develop professional relationships

With those observations in mind, I began altering my approach with opposing counsel to seek cooperation where it was possible and, in all events, to conduct myself civilly. Not too surprisingly, I found that my representation of clients’ interests improved and the results improved as well.
Along the way, I began developing a host of positive relationships with other lawyers, both working and personal. I also found that I could be tough and resolute in representing my clients’ interests, but still be professional and civil with opponents. I could explain all this quite effectively to my clients, while managing their expectations and further developing their confidence in me and our relationship. Forty years and several hundreds of cases later, I’ve not changed my mind. Indeed my beliefs on this are even stronger.

Agreements on scheduling

One example where cooperation with your opponent should be of importance to you is on scheduling. Agreements on scheduling should be the easiest to achieve, whether it be on discovery, motions, pre-trials or trial. Each side will need some flexibility from time to time.
Your refusal to cooperate will surely come back to haunt you when you inevitably need similar cooperation. Good planning is an important element in managing litigation. If you’re unable to properly sequence the development of your case because of an intractable approach across the board, you’ll end up paying a price, and perhaps a hefty one.
But what happens if your opponent and opposing counsel are the obstacles and not you or your lawyer? If an agreement on scheduling with your opponent proves to be impossible, deal with it at the scheduling conference that most federal and state courts (and even arbitration panels) now insist upon at the outset of the case. Be prepared to explain in writing and orally to the court at the scheduling conference the problems you’ve experienced with the other side in reaching agreement. You be the voice of reason and with a sensible written proposal on scheduling. With a scheduling order from the court in hand, you can force some order into the process while proceeding rationally, reasonably and, yes, aggressively.

Stipulations

Another major area of cooperation with your opponent that can serve your interests relates to stipulations. Whether during the discovery process, or dispositive motions, or at trial, stipulations on facts and legal standards can advance your position and save you tremendous sums of money in all of those phases.
I don’t mean to suggest you make it easy for your opponents to work through issues that might prove difficult to establish. Rather, I am suggesting that your outside trial counsel be encouraged to spend the time necessary to assess what is important to your case and which might be the subject of a stipulation, and weigh it against what you might have to give up in return to obtain such an agreement.
In other words, make sure your trial counsel explores possible stipulations and makes them where possible. It is so counterproductive when, in the absence of such an evaluation and potential cooperation, counsel end up spending an inordinate amount of time, energy and money working through issues that should have been the subject of a stipulation had a professional working relationship been developed with your opponent.

Settlement

Last, and most important, I’ve found that the development of a professional relationship with my opponent enhances opportunities to settle the case. A steady flow of positive communications amongst opposing counsel can lay the ground work for those important discussions to commence and permit a more expansive exploration of settlement.
Remember, the ultimate compliment of your trial lawyer from opponents is not only that he or she was very tough and effective, but good to work with and against.

A founding partner of the Boston-based law firm of Ruberto, Israel & Weiner, P.C., Barry Weiner has been a business trial and appellate lawyer for over 40 years. He’s also served as an arbitrator, mediator and a master in the courts, and he teaches advanced alternative dispute resolution at Boston University School of Law. He can be reached at [email protected] or 617.742.4200.

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Positive relations checklist