Where I am currently working, there is a rule; not an unwritten rule mind you… no this is actually written down in the ‘playbook’ we are supposed to follow for dealing with Opposing Counsel.
You are supposed to be a dick to opposing counsel. If you can make their life just a bit more difficult, you are supposed to.
- Have a hearing you can pass but OC would have to travel to show up to it? Go ahead and have that hearing, maybe pass it in person in the court, just to give an extra screw you to them.
- OC needs some documents which we are supposed to be giving to them (hell we may have even agreed to give them over)? Make them file a Motion to Compel before we part with the documents we already know are worthless to them.
- Find out OC’s schedule can’t accommodate something? Only schedule hearings and depositions for those days and be intractable about any other schedule. Use those days they were unavailable in court to prove they were the obstructionist. I weep for those attorneys who send out advance notices of vacation plans to our office.
- Did I hear the deponent mention the name of their long lost friend twice removed who they haven’t seen in 10 years? That’s a necessary deposition and we won’t produce any further discovery until you find them.
- I must text, email, and call you at random times, but if you try to contact me I will be nowhere to be found.
- Opposing counsel emails asking if we can bump a deposition 30 minutes so they don’t have to get up at the ass-crack of dawn in order to show up? … “Hello? Anyone there? Weird… this email seemed to work yesterday. I wonder why we can’t get a response…”
- You are a solo attorney? HA HAHA HAHA… Sure we’ll call you back sometime right around half-past never. (seriously though, a solo to this firm is about the same as saying the opponent is pro-se. We are supposed to beat them like a redheaded stepchild because they usually can’t figure out how to fight back.)
- That person we absolutely need to depose is in Middle-of-Nowhere, USA– We could either fly them here, or we could make literally everyone else fly there. Looks like its road trip time…
- Discovery? You mean Discovery OBJECTIONS… to every… single… request. (this one is actually rather endemic across the whole field; it’s not just this firm.)
- Oh, and the venue we are going to fight like hell for is a tiny little nowhere court where the judge’s campaigns are significantly bankrolled by our firm. Good luck getting out of this quagmire of a venue, suckers. (and no, it doesn’t matter if venue is improper, we are supposed to fight like hell to keep it there regardless.)
Why you ask, are we supposed to be completely unprofessional? The theory is that if the firm makes OCs dread the thought of drawn out litigation with the firm, they just might settle to avoid the inevitable hassle and annoyance over the next 2 years as the firm plays out their petty shenanigans against you.
Of course, the next question is, does this tactic work? The answer is mixed. I think it does work against in-house counsel. It doesn’t at all against outside counsel who are paid by the hour. In fact, many billables are gleefully created by the outside counsel firm who recognize that our firm will keep every litigation case going until the sun burns out, and thus a wonderful opportunity is created. The defense counsel bills the living hell out of their client, and ultimately settles the day before the trial making their client pay out to the plaintiff’s firm also; and thus both are happy as they both robbed the defendant-client blind.
My boss sees being nice (or professional for that matter) as weakness. In point of fact, normal courtesy ends up sparking irrational paranoid thoughts in them. For example, OC asks that we amend a pleading to drop an unnecessary party? Suddenly the paranoia goes into overdrive. Why would they ask that? It must be a trial tactic, therefore even though they see no reason not to, and OC offers every assurance including verified agreements, we obviously have to keep that party in the case. Because OC is wiley and probably trying to trick us somehow. (is it possible? maybe, but only if we are dealing with the same type of personality as my boss honestly). I have been told several times that I am a ‘nice guy’, and oh yeah, that’s a pejorative here. I have also been told that only new attorneys actually believe there is any sort of professionalism and honor in the legal field.
So, am I a dick? No. I work around a lot of them, but I am not. I generally feel like acting like a normal person and trying to expedite things is really the better way to work. It definitely helps move the case a bit faster and clients seem to be much happier they don’t have to wait a million years for the case to settle. It is apparently a rarity to be civil as I have had several OCs comment on how much nicer it is to work with me than most other attorneys.
Our profession is pretty fucked up, and quite a few people think keeping it that way is an excellent way to make a fair amount of money.