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We, as attorneys, are required on the one hand to pursue our clients’ goals with “zealous advocacy.” We must strive to help them in achieving their ends by all legal, legitimate, economic means at our disposal. Yet, at the same time, it is critical that we engage with our opposing counsel in a manner that maintains a high level of courtesy and professional integrity. And one may inquire, why? What place does courtesy have in the gladiatorial environment of litigation? Is it not superior to use any and all means to exert maximum pressure on one’s opponent–to be a “bulldog” attorney, as the phrase is sometimes used?
There was a civil case (don’t all litigation stories begin this way?) in which the plaintiff claimed that her ex-husband and her ex-husband’s girlfriend plotted her murder, and did all manner of other horrible misdeeds. Although they had each been convicted of felonies related to the claims brought by Plaintiff, her actual claims, both in nature and in amount, were disputed by the defendants. The complaint began with ten causes of action against the two convicted felons. Plaintiff’s attorney, confident in his claims, did not deign to treat his opposing counsel with even a modicum of respect–deriding them at every turn for representing such defendants, threatening them personally (and unwarrantedly) with sanctions, abuse of process and malicious prosecution claims; engaging in misleading conduct; and declining entirely to discuss settlement in any realistic fashion. At the beginning of the case, the estate of Plaintiff and her ex-husband (not yet divided up, pending the outcome of the civil case) might have been worth close to $10,000,000, though perhaps a little less.
Well, the case wore on (what else could it do under such circumstances?), and nearly two years later, the parties were still fighting. But now, time and litigation had depleted the marital assets until they were worth perhaps half of their former value. Along the way, various opportunities had existed whereby the matter could have been resolved for perhaps $500,000 to $1,000,000, if only any good faith negotiation had taken place. At the end of two years, one of the defendant’s attorneys was replaced and the new attorney began to suffer the same unwarranted mistreatment at the hands of this Plaintiff’s counsel. So instead of negotiating, the new attorney pursued the most aggressive litigation tactics available. As a result, over the next seven months, Plaintiff saw her ten cause of action case against two defendants dwindle to two causes of action against a single defendant. She saw the potential offer of a $1,000,000 settlement reduced to $100,000. She faced exposure to payment of tens of thousands in costs, and additional potential liability brought on by a new cross-complaint. And the marital estate had shrunk to perhaps a third of its former glory.
The final chapter of that case has yet to be written. Even so, one cannot imagine but that Plaintiff would have been better off if her attorney had treated his opponents with courtesy. He need not have run the risk of inspiring his opposing counsel to do all in their power to thwart him, and might have obtained an earlier, less costly resolution of her claims. Many, many other examples could be offered of situations where courtesy and respect for one’s opponents can yield significant, genuine benefits to one’s clients. This is simply a particularly clear, egregious example of the cost of discourtesy.
Our place in this story? We were the replacement law firm for the second defendant.
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