Monday, October 22, 2012

Lawyers, for once in your life listen to your Mother's two Golden Rules!

1. Always play nice

2. Make sure there are no holes in your underwear in case you get into an accident - that is, if you're wearing any
Always play nice in the sandbox
Rude lawyers shouldn't expect favours when in need

By Geoff Kirbyson
Firday, October 19, 2012 Issue

Lawyers can be human bulldogs, fearless and often ruthless in the pursuit of getting what’s right for their clients. But if they want to optimize their efforts, a trio of veteran lawyers says they should heed their mothers’ advice and be nice.

Being respectful and civilized in dealing with opposing counsel as well as judges can serve your side well both today and down the road, they say.

Part of the problem is the perception that the more aggressive a lawyer is — ​litigation lawyers in particular — ​the better advocate they become. But the reality is almost invariably the opposite, according to Adrian Lang, a partner at Stikeman Elliott in Toronto. She says there’s a big difference between being a fierce advocate on the issues and simply being fierce with the opposing lawyer.

“Being civil, professional and going out of your way to be of assistance whenever it’s appropriate with the lawyer on the other side benefits everybody,” she says.

“So much of what we do as litigators is based on our reputations. If you are difficult to deal with and unpleasant, not only will people not refer work to you, clients on the other side won’t ever want to deal with you and you won’t get asked to speak at conferences. There’s a whole trickle-down effect of being unpleasant.”

Lang says she does her utmost to be respectful, polite and friendly with opposing lawyers and allow indulgences when it’s reasonable, such as an extra few days to get a court document.

This kind of demeanour can cause confusion for clients, as they tend to have strong negative feelings toward the other litigant. Because they take the entire process personally, they expect their lawyers to do likewise.

“Sometimes it involves saying to your client: ‘I don’t operate that way. You have to appreciate if you hire me that the best way to deliver good legal services is to be civil with other lawyers,’ ” she says.

Some of her best cases were hard fought, take-no-prisoners affairs where she and the opposing counsel had “vehemently opposite legal positions.”

“At the end of the day, I respect and admire the counsel on the other side because they did a good job and because they’re good to deal with,” she says.

On the flip side, Lang has also had rare instances where opposing counsel has been so unpleasant, obstreperous and difficult to deal with that the entire case became a chore and exceedingly unpleasant.

The challenge for many lawyers is to know the boundary where aggressive passion becomes abusive incivility.

Crossing over to the dark side not only will “harm your own reputation but it harms your client’s best interests,” says Bob Sokalski, a partner at Winnipeg-based Hill Sokalski Walsh Trippier.

One of the biggest contributing factors to a lawyer’s success is his or her likeability, he says. Many American lawyers, for example, take out television commercials advertising their extreme aggression. Jim “The Hammer” Shapiro, for example, loudly proclaims that he might be a bastard but he can be “your” bastard.

“That only goes so far, particularly in Canada, where if your approach and attitude is laced with rudeness and uncivil behaviour, you’re not likely going to get the time of day from your opponents. The more bridges you burn, the less rivers you can cross,” Sokalski says.

A reputation for being agreeable and good to work with could be even more crucial in smaller centres because you’re going to stand before the same judges and opposing lawyers time and time again.

“In the world of litigation, one needs to fight hard, fearlessly and aggressively, but doing so doesn’t provide an excuse to forget one’s manners,” he says.

To prove his point, Sokalski produced a widely-circulated letter from a Houston-based lawyer whose request to have a deposition postponed was refused by opposing counsel despite the most extenuating of circumstances.

“I am sorry that a hurricane hit Houston. I’m sorry that I had no power or water at my house because of the hurricane…I am sorry that upon returning to my home I discovered a roughly 50 ft. by 6 ft. swath of human excrement, used condoms and all the other niceties that come with a raw sewage leak in one’s backyard…I am sorry that you think the judge should be involved in this matter. I wonder if the judge will be sorry about that, too. I am sorry that you are the only lawyer in this case that consistently goes out of his way to be unaccommodating and unprofessional with the other lawyers. I am sorry you are from Dallas.”

Sokalski also cited an example of a lawyer who sent an abusive letter to a counterpart. The response acknowledged receiving it and replied: “I’m sending it back to you to allow you to reconsider.”

“When you’re outraged by someone else’s conduct, put it down in writing and put it in a drawer. Then wait until the next morning and think about it again. You can never put toothpaste back in the tube,” he says.

In addition to a reputational price, uncivil lawyers can face financial penalties for their behaviour. Glenn Smith, a senior partner at Toronto-based Lenczner Slaght, says punitive costs have been awarded in a number of cases because of how lawyers conducted themselves during the trial.

“Two million dollars in costs gets your attention.”

It’s not just your demeanour in the courtroom where civility is important, he says. The “old-school” practice of hiding evidence and making it difficult to produce can be just as bad. In Canada, lawyers have an obligation to produce the relevant documents for the other side. If one lawyer is intent on being difficult, however, his or her definition of “relevant” may be very different than that of the other side.

“You can say: ‘I have 19 relevant documents in a case that has 10,000.’ Or you can produce 10,000 documents in a case that only has 19 relevant documents. Neither is being civil,” he says.

Smith says clients and the courts today deserve counsel who narrow the issues and communicate with each other. The old school way was not to communicate and send barbs back and forth in e-mails or letters.

“Today, the new rule is co-operate. Get the case to trial and win it on the merits, don’t win it because of bullying. You hear bullying in schools, it’s another word for not being civil,” Smith says.

So, how do you start off on the right foot as a young lawyer? Sokalski recommends trying to work with successful lawyers who have earned their stripes by being nice. If such role models don’t exist at your firm, he suggests visiting the courthouse and watching well-respected lawyers ply their trade.

And how should you respond when the lawyer on the other side is being abusive and unprofessional? Sokalski says it can be effective to react in the opposite way.

“I learned many years ago from my wife, if I start to yell about something, she starts to whisper. That sends a message. Two people yelling aren’t going to get anywhere fast.”


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