Lawyers, Litigation/Trial Law

6. Lawyers: The Lawyer as Diplomat

Some lawyers never miss an opportunity to start an unnecessary war. These lawyers take pride in their belligerent, antisocial conduct and the extra fees that such behavior produces. Worse yet, some clients are pleased with this conduct, believing that this is “what lawyers are supposed to do.” The really bad news is that it only takes one of these lawyers to start a war or, at least, create a lot of needless expense.

Fortunately, most lawyers would not dream of starting a needless war or an unnecessary battle. For some, it’s a matter of conscience; for others, it’s just common sense. Their necessary-wars-only approach has nothing to do with being passive or unwilling to protect their clients.

Many are excellent trial lawyers who routinely pursue their clients’ rights in court. Most don’t think of themselves as high-minded or missionaries. They simply take their profession seriously. To them the court system is a sacred and necessary tool for social justice and stability. It is not a game for their amusement, and their clients’ lives are not to be toyed with or needlessly put at risk. They pride themselves in charging only for work that needs to be done.

Lawyers who want to avoid unnecessary wars must be diplomats. They probably don’t think of themselves as diplomats, but that is what they are, and many are very good at it. Their diplomatic techniques come right out of kindergarten and are regularly used by civilized and decent people everywhere. Here are some examples of how you might save time, money, perspiration, and wear and tear if you were the lawyer running your [lawsuit]:

  • First, ask politely, even if your client is absolutely entitled to whatever is being requested. If your opponent refuses, there still will be plenty of time to make shrill demands and, ultimately, force the offending party to comply.
  • A telephone call to inquire whether or not your opponent will agree is much easier and cheaper than preparation of lengthy pleadings, scheduling one or more hearings, preparing witnesses, appearing at one or more hearings, and waiting for the judge to reply. If your opponent says “no” to the telephone call, there will still be time for fun and games at the courthouse.
  • When your opponent calls asking for something to which he or she is entitled and will ultimately get anyway, consider agreeing to provide it rather than forcing a judge to order compliance with your opponent’s request. This will save the time required to prepare the pleadings and schedule hearings. It also might garner future concessions from your opponent or favorable rulings from a judge who now believes that you’re reasonable because you requested only necessary and reasonable things from the court.
  • Tell the truth. Most people understand that they can’t rely on anything said by someone who didn’t tell the truth the first time. Don’t promise something that can’t be delivered. Don’t promise something that won’t be done.
  • Don’t threaten, interrupt, belittle, or ignore those who are just trying to converse about difficult subjects. Remember, talk is cheap and fighting, even in court, is very expensive. If a lawyer must threaten people for no reason, perhaps a career as a professional wrestler would be more suitable.
  • Don’t act as if you and your client are better than those on the other side. Don’t call them names, be condescending, arrogant, rude, boast ful, etc. All of these things may temporarily titillate and thrill a shriveled ego, but they also tend to make the opposition relish any and all opportunities to make life difficult for you. Again, this creates needless expense.

It is likely that these common-sense rules of civil behavior, commonly practiced by a majority of lawyers around the state, save clients many millions of dollars in legal fees and cost every year. When your lawyer uses this common-sense, low-key approach, it is not a sign of weakness. Rather it is in your best interest. Lawyers who use diplomacy frequently obtain better results through agreements than could have been obtained in court. This is because the kid everyone likes is the one more likely to get the extra cookie.

But make no mistake, diplomacy is not a solution for every case. While it takes only one to make war, it takes both parties to make peace. In other words, even if you’re willing to be reasonable, your opponent can veto the diplomatic process. Therefore, if your levelheaded and reasonable lawyer tells you that all of the suggestions that I have made above won’t work in your case, at least not yet, you need to listen.

When you have a lawyer or a party as an opponent who wants to fight and is not interested in reasonable discussion, attempts at diplomacy are a waste of time and money. Your lawyer will tell you why he or she thinks it’s not a good idea to attempt to negotiate in these cases.

A classic example of a lawyer who would not negotiate is a lawyer against whom I regularly handled cases years ago. When I was hired in a case in which this lawyer represented the opposing side, I soon learned it was of no avail to make calls or attempt any kind of discussion with this lawyer. He would not return phone calls, respond to correspondence, or enter negotiations in any other way. The only choice was, depending on the circumstance, to set a hearing on a temporary matter or set the case for the final trial. After the hearing or trial began, at some point, this lawyer’s client would be called as a witness and testify until a recess was requested by my opposing counsel. During that recess, after the judge left the bench, the opposing lawyer would tell his client, in front of me, my client, God, and everybody else present, that he or she (the client) was a horrible witness. Then, with little or no fanfare, we two lawyers and our clients would go into the hallway outside the courtroom and settle the case, usually on terms that were worse for the opposing client than could have been obtained before the hearing or trial. Over the years, I watched this scenario play itself out a dozen or more times. Of course, most lawyers unwilling to negotiate don’t follow such a crude and senseless process as I have described. But, many, many lawyers and/or clients will begin divorces with the attitude that they are going to have their way about everything and, therefore, that discussions are unnecessary. As discussed in Chapter 11, this reluctance to be reasonable lasts until the client gets a few bills from the lawyers, loses a temporary hearing or two, and is actually required to answer difficult and embarrassing questions at his or her deposition. By then, their lawyer is satisfied with the fee that has been earned for all of this needless work, and the client has decided that lawsuits and divorce are not as much fun as he or she had imagined. It is at this point that both sides can finally discuss settlement and, often, the case can be settled in the way that it should have been settled months or years earlier.

Finally, there is the common scenario of diplomacy and negotiations breaking down. Frequently, reasonable parties and attorneys begin divorce cases by attempting to negotiate a settlement only to learn that the parties cannot agree on a final settlement. At this point, diplomacy and negotiations break down, and the parties agree that the case will have to be tried. Usually, but not always, the silver lining to this kind of negotiation impasse is the fact that negotiations and reasonable discussions between the parties have narrowed the issues so that a trial can be limited to the real differences between the parties, thereby shortening the process and saving time, money, and human relations.

 

Robin M. Green, Divorce: When It’s the Only Answer (The Ordinary Mortals Guide, Inc., 2005), Chapter 12, pp. 79-82.