About ten years ago, my former law partner and I were involved in a noncompete case against the fourteenth-largest firm in the country. (It’s since slipped about forty spots. As you’ll see, payback’s a bitch.) The ginormous firm hit us with an emergency motion for injunctive relief, and gave us only two days before the hearing to respond. At the time, there were just two of us in our firm, and we were busy with a couple other matters as well. So we called up the lawyer on the other side, explained our situation, and asked him to indulge us with a short extension.
He replied, “No, I’m a douche. You can’t have an extension. See you in court.” It’s possible that I’m misremembering some of the actual words, but my recollection of the meaning is spot on. So my partner and I cleared the decks of our other work, buckled down, pulled an all-nighter, and got our opposition brief done in time for the hearing. Oh, and won.
The following week, the tables turned. We filed a motion to get the case dismissed for forum non conveniens, marking the one time in my career that I actually used something I learned in law school. We filed and served our brief and got a hearing scheduled for four days later. Then our opposing counsel called and — wait for it — asked us for an extension.
What do you think my partner told him?
He said, “Well, Floyd,” which was not his name, because that would be lame of me to put his name in a post like this, so “Floyd” is a pseudonym; his real name is “Valerie Katz.”
“Our firm policy is to always give extensions when opposing counsel ask, because of, you know, professional courtesy,” he said. “But I seem to remember a situation in the recent past when we asked for an extension, and you declined. So I’m afraid we’re going to have to pass.” My partner was a much nicer guy than I am; I would have added, “Oh, and you’re a douche.” So the poor ginormous law firm had to work a bit harder to get their opposition in, and we had our hearing. And we won.
But since then, I’ve amended our firm policy. Now we always give other lawyers extensions, even if they wouldn’t give us one when we asked. Because even though the extension douche in that case had it coming to him, we should have been better than that. Looking back, both my partner — who went on to become the state’s top civil-rights lawyer — and I agreed that we should have taken the high road.
Now, I know that some of you are thinking, “Why would you give the other side an advantage? What kind of wussy litigator are you?” I’ll tell you: I’m the kind of wussy litigator who realizes that if my case sucks so bad that I need to depend on taking advantage of my opponent’s scheduling difficulties to win, then I shouldn’t be litigating this case; I should be settling it. Because denying extensions in an attempt to gain an edge is total bush-league baseball. We play all nine innings here.
Sometimes, when I ask for an extension, my opposing counsel tells me that she has to ask her client. This is usually the point when I realize that my opponent isn’t a real lawyer. Because real lawyers understand the differences between the role of the client and the role of the attorney. The client is in charge of the big picture, the strategic decisions on whether to proceed or to settle (with the lawyer’s advice, of course). The attorney is in charge of the tactics of the case, like what font to use in the brief, what witnesses to call, and whether to give extensions. Your client doesn’t go to a restaurant and tell the chef what temperature to set the oven; he just orders what he wants. You’re the lawyer; you’re supposed to be the expert. If your client was the expert, he wouldn’t need you to handle his case.
I’ve had a client question me on this, saying that he should have been consulted on the extension decision. To which I said, “Mmmm-no. My job, not yours. That’s not how we do it here.” If your client doesn’t understand your role, you need a new client.
So what does this have to do with small law firms? If you’re at a big firm and you play the no-extension game, you’re not likely to change the reputation of your firm. But if you’re at a small firm, you will get a reputation as being an extension douche, and so will your firm. And people in any small town — and trust me, no matter where you work, it’s like a small town — will remember. People have asked me about Floyd, and I haven’t held back. “Extension douche,” I say. And they nod and go, “Uncool.” And it gets harder for Floyd to get things done for his clients.
So give extensions when opposing counsel ask for them. They’re likely to convince a court to grant them anyway. And then even the judge will know that you’re the douche.
Jay Shepherd has run the Boston management-side employment-law boutique Shepherd Law Group for the past 13 years. Jay also founded Prefix, LLC, which helps lawyers and clients value and price legal services. He writes the ABA Blawg 100 honoree The Client Revolution, which focuses on reinventing the business of law, and Gruntled Employees, a workplace blog. Follow Jay on Twitter at @jayshep, or email him at [email protected].