What Experienced Attorneys Know About Relating to Opposing Counsel

The following is a guest blog post by Anabella Q. Bonfa. Ms. Bonfa is a litigator with Wellman & Warren LLP and has built a reputation for handling business and partnership disputes, theft of trade secrets, and unfair competition. She lectures extensively on trade secrets, networking, and using social media to develop business.

In the last year, attorney professionalism has been a hot topic. Courts are issuing sanctions more than ever against attorneys who engage in abusive and inappropriate, or even discourteous, behavior in and out of the court room. Experienced attorneys know the reasons to consider your level of professionalism in law practice—and what it can cost if you don’t.

  1. The legal world is small.  You run into the same attorneys during your career, so how you behave toward them in one interaction may bite you back in a later one. And opposing counsel may not always stay that way: It’s common for attorneys to later work for opposing counsel, become co-counsel on future cases, or even sponsor each other pro hac vice for an out-of-state case. Your good reputation in the legal world is paramount, so don’t sully it by refusing to give extensions or engaging in other hard-lined behavior. You can be a strong advocate without being a jerk.
  2. Ethical rules require civility. Many ethical rules in both Superior and Federal court in California require professionalism between counsel. See e.g., Orange County Complex Court Guidelines, Appendix 1; Los Angeles Superior Court Guidelines for Civility in Litigation Appendix 3.A; CD Cal Local R 83-3.1.2. Failure to be civil may result in sanctions and disciplinary penalties that could ultimately result in a malpractice case against you and your firm.
  3. Judges want civility. Judges hate attorneys who fight, exchange correspondence with insults, and engage in other unprofessional behavior. When motions are filed, it’s common to attach correspondence between counsel setting out their attempts to resolve the issue. When judges see “name calling,” posturing, accusations, and other unprofessional behavior attached to a declaration to a motion (or in the correspondence itself) both counsel are reflected in a poor light in the court’s eyes. Judges expect attorneys to resolve issues whenever possible in a professional and expedient manner without court intervention.
  4. Negativity ratchets up costs. Poor behavior between counsel escalates litigation costs and the client often pays in the end. Some counsel send daily accusatory or self-serving emails to opposing counsel. This often results in opposing counsel having to respond to the correspondence to either state their position or to refute facts set out by opposing counsel. Or counsel may refuse to move the dates of depositions or give reasonable extensions, requiring unnecessary protective orders and other court intervention. The time spent in this behavior escalates hourly costs for both attorney’s clients.

If you find yourself and opposing counsel exchanging heated emails, take a step back. When you’re calm, pick up your phone and try to work out a solution. It helps to acknowledge that you understand the other counsel’s point of view. Discuss how both of you are just doing your jobs and there are no personal bad feelings. Sometimes an offer to concede on a point that’s not very important to your client can show your good faith and willingness to resolve an issue.

To help you improve your skills in this area, CEB has these two MCLE programs available On Demand: Managing Opposing Counsel and Empathetic Communication for Attorneys.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2018. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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