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Nice Litigators Finish First

Litigators can benefit from a civil and courteous attitude toward adversaries and other with whom they interact.

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I have been interested in litigation since I first considered attending law school over a decade ago. The thought of presenting arguments in court and participating in trials really appealed to me, and I knew I wanted to work mainly on litigation matters from the beginning of my legal career. When I first conveyed to a few practicing lawyers that I wanted to be a litigator, they said that I was too nice to be effective at litigation. Indeed, some of my earliest mentors in the legal profession told me that good litigators need to be ruthless and that being civil and empathetic were not good qualities as a litigator. However, in my own experience, nice litigators finish first, and litigators can benefit from a civil and courteous attitude toward adversaries and other with whom they interact.

The main reason why nice litigators succeed more often than rude litigators, is because congenial litigators can build better relationships with adversaries, witnesses, and others involved in the litigation process. The vast majority of lawsuits are resolved through settlement before cases are ever presented to a judge and jury. Settling a case often requires that the attorneys involved in a matter get along with each other. This is especially true if the parties themselves are on bad terms, because then their attorneys can have conversations that may amicably resolve a matter. If the attorneys on a matter do not get along, it is far more likely that mediation may be required or that judicial intervention will be sought, which can be costly. People do not want to settle lawsuits with jerks, and being nice to adversaries can help attorneys achieve the best outcome possible for clients.

In addition, courtesy is an important part of litigation. Attorneys often ask for extensions, courtesy copies, notice about events in a case, and other favors throughout the course of a lawsuit. If a party has been rude to another lawyer, it is far less likely that the other attorney will provide a courtesy that can make it easier to litigate a matter.

Sometimes, courtesies are more important than legal arguments a lawyer might make during a lawsuit. For instance, I once worked on mass torts matters during which it was extremely difficult for defendants to have a case dismissed if a party was named at a deposition. However, over the course of years litigating these cases, defenses attorneys like myself at the time got to know the plaintiffs’ lawyers relatively well, and we built a rapport with many of them. This friendship was important to receiving notices about when and where depositions would occur and which cases would implicate a particular defendant.

One time, I asked a plaintiffs’ lawyer to dismiss one of my clients based on a relatively complicated bankruptcy argument. Although the lawyer could have taken the matter to court, and possibly could have won, the lawyer eventually convinced the client to dismiss my defendant from the case, possibly because of the good relationship I had with the attorney. The litigation bar is smaller than you think, so if you earn a reputation as a courteous lawyer, it might follow you around to other lawsuits in which you may be involved later in your career.

Of course, there are some situations in which it is difficult to be courteous to an adversary in litigation. Sometimes, clients are so upset with adversaries that they refuse to allow you to extend courtesies in litigation. Of course, in these circumstances, lawyers may need to accede to their client’s wishes, but I always try to explain how extending courtesies can impact a case.

One time, I filed a lawsuit on behalf of a client, and the client refused to allow me to extend the time for an adversary to answer the complaint. I explained that we were trying to resolve the matter, and extending the time to answer would give us more time to negotiate before the defendant needed to spend resources on legal fees, which may make them less willing to settle the matter. The client eventually agreed to the extension, and we resolved the matter shortly thereafter. Of course, in other situations, it is more difficult to convince a client to extend courtesies, but it is usually beneficial to explain the value of courtesies in litigation in most cases.

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Of course, all litigators need to be prepared to ruthlessly litigate a matter if this is necessary to advance a client’s interests. Indeed, I am not afraid to “let the Jersey out” and pounce on adversaries who act discourteously or underhandedly in litigation. However, it usually pays to escalate matters only after an attorney has been provoked by an uncivil adversary, in order to preserve the moral high ground and give courtesy a chance.

All told, there is an old saying that “you attract more flies with honey than with vinegar,” so I am not sure why so many people think that effective litigators need to be ruthless and discourteous. In my experience, being kind and civil can have a number of benefits for litigators and their clients. Of course, litigators need to be prepared to do battle if provoked by an adversary, but in most instances, nice litigators finish first.

Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

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