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Beyond Biglaw: 3 Tips For Discussions With Opposing Counsel

Columnist Gaston Kroub advises lawyers on how to make the most of the opportunity every single time they actually speak to opposing counsel.

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Beyond BiglawIn the interests of heading off disputes, particularly regarding discovery issues and the like, many courts have instituted “meet-and-confer” requirements. Before a contested issue can be presented for adjudication, the lawyers for both parties are obliged to have a discussion between themselves in an effort to at least minimize, if not eliminate, the areas of dispute. Courts that have codified meet-and-confer requirements expect counsel to take them seriously, and some courts even require that counsel certify that a meet-and-confer took place. In federal court, there is often a requirement that local counsel also be present at the meet-and-confer. As a result, litigators with an active practice often find themselves preparing for, or conducting, meet-and-confers on a regular basis.

One of the interesting things about meet-and-confers is the implicit recognition by judges that without them, disputes are more likely to proliferate and fester. Without an obligation for attorneys to actually talk to each other, the likelihood increases that correspondence between them will be by letter or email. Litigators often like nothing more than sending over “nastygrams” to each other, containing complaints about all kinds of behavior by the other side. These missives, at once accusatory and demanding, manage to twist any behavior from the other side into a problem of some sort. Each side typically demands immediate judicial intervention, while also angling to avoid being the one to actually file the motion if at all possible. Nastygrams of this sort tend to increase tensions, and absent a requirement that counsel actually talk to each in other in good faith to limit areas of dispute, most recognize that relying on written communications alone will only prolong disputes.

As common as meet-and-confers are, and as important as they are to handle well, there are of course numerous other situations — even in this age of email — where opposing lawyers actually need to talk to each other. Whether it be during a deal negotiation, or exploratory settlement discussions, or complying with initial conference discovery plan requirements, lawyers are charged with handling these encounters with aplomb, and using them to advance their client’s interests. In fact, actual discussions between counsel are often one of the most cost-effective means for making progress in a deal or dispute. Oftentimes more can be accomplished in a fifteen-minute phone call than in email exchanges that can take longer than a call to draft and respond to.

Therefore, lawyers need to make the most of the opportunity every single time they actually speak to opposing counsel. As with most lawyerly skills, however, there is very little formal instruction provided by law schools or firms on how best to prepare for and conduct a meet-and-confer. In fact, I am sure many associates tasked with setting up (much less conducting) their first meet-and-confer with opposing counsel are at least unsure about what a meet-and-confer actually is. Likewise, unless one has had some exposure to actual meet-and-confers, it is difficult to know how best to prepare for one. While the tips below are discussed in relation to a meet-and-confer on a discovery issue, they are applicable to any telephone discussion of importance, whether you are a lawyer or just aim to be as annoying as one when talking to others.

First and foremost, it is important to have an actual objective for the call — which requires some forethought to establish. Ideally, your objective is a reasonable one, but lawyers also know that sometimes clients or circumstances demand that we take unreasonable positions at times. Often, those unreasonable positions are a bluff of some kind, but in any event, every call with opposing counsel should aim to accomplish something of benefit to your client. Whether that is limiting the issues in dispute, or getting them to commit to performance of some kind, having a set of minimum and maximum expectations for the call in advance can be helpful.

At the same time, it is important to realize that interpersonal communication is defined by a give-and-take, which requires some flexibility. It is very easy to mail in a meet-and-confer by just agreeing to disagree with the other side. Skilled advocates, however, would often consider such a result a missed opportunity. Understanding your objectives only helps in identifying incremental areas of possible agreement, and allows for a more productive discussion. Preparing a short outline for the call that lists your objectives and support for your positions is also key.

Second, it is important to have some idea (when heading into a meet-and-confer) about your opposing counsel, local practice customs, and if possible the Court’s tolerance for the types of disputes you are trying to avoid motion practice on. For that reason, some research into recent discovery motions filed or responded to by opposing counsel, as well as review of your judge’s individual practices and recent discovery decisions, are important tasks prior to the call.

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Likewise, it often pays to consult with local counsel — who are generally called upon to handle numerous meet-and-confers across their various cases — about your positions and objectives prior to the call. Many jurisdictions require local counsel’s presence at a meet-and-confer. But many lawyers limit local counsel’s role to logistical issues and post-call debriefing. That can be a mistake. At minimum, it is important to have local counsel, or another attorney from your firm if possible, taking notes on what transpires during the call. Interchanges can get heated, and the lawyer speaking or responding can get so engaged that taking complete notes or recalling everything later becomes impossible. So have someone to take notes, and provide feedback, when possible.

Finally, it is important to recognize that the responsibility for a productive meet-and-confer rests with you. Accordingly, it is important to take initiative and guide the call to at minimum cover the areas of importance for your client. Having an outline can help make sure that topics of interest are not skipped over, and that when you present your position you can make your best points for maximum impact. It is not the time for passivity. Even if you are in a position of just responding to the other side’s demands, having some suggestions to advance which limit the burden on your client can help minimize the expense and aggravation of any agreed-to or required future action. You don’t want to hang up feeling like you failed to get your points across, or that the phone call was driven by the other side. Preparation in advance will make it easier to seize the initiative.

Ultimately, the ability to win a discussion is an important practice skill for any lawyer. The best way to enhance your ability to win is to prepare for the call, engage the help of others on your team, and direct the actual call as much as possible. Sure, you will be stuck dealing with another lawyer on the other end of the line. There are no guarantees that your conversations will be pleasant ones, or that they will be with good company. Win them, and you won’t care.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

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Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique. The firm’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

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