As many attorneys can attest, litigation is usually a very adversarial process. Oftentimes, litigation is a zero-sum game, and anything adversaries can gain for their clients is something that is taken away from your clients. Adversaries usually need to take hard and sometimes annoying positions in order to secure every advantage for clients. Although lawyers should not be easily forgiven for failing to extend simple courtesies, lawyers should not be too hard on their adversaries for taking positions that might make it more difficult for them or their clients.
Sometimes, lawyers need to make litigation more difficult so that the other side will see all of the resources that must be spent litigating a case and might be more willing to settle a matter. Settlement decisions are often business decisions that weigh all of the resources, time, and brain space that need to be devoted to a matter. Of course, lawyers cannot commit a course of action that has no other purpose than to harass the other side or delay litigation, but this does not mean that lawyers cannot pursue voluminous document production, additional depositions, and other discovery in the hopes that more information will be uncovered, and the other side will need to devote more resources to a matter.
Earlier in my career, I had a case in which my deponent was out of the country, and the deponent did not want to travel back in order to be deposed. Even before COVID-19, it was not uncommon for international deponents to give testimony virtually rather than travel long distances to be deposed. I asked my adversary if he would be willing to consent to depositions occurring virtually, and I offered him the option to conduct the deposition of his deponent virtually, so everyone was on an even playing field.
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However, this attorney was insistent that the deposition occur in person. The other lawyer said that it is easier to handle exhibits and comprehend nonverbal cues if depositions occur in person. Even though this was the argument the lawyer was making, I understood that the lawyer also wanted to make the litigation harder on my deponent. If the deponent needed to spend a substantial amount of time and resources flying in order to be deposed, my client would be more likely to settle the case.
Initially, I was kind of peeved that the lawyer made us argue the issue in front of the court rather than just agree to a virtual deposition. After a while, I just accepted that the lawyer was doing what was probably best for his client, and I should not hold this against him. Although the episode did not help us promote courtesy in the litigation, I could understand where this lawyer was coming from.
Another situation in which lawyers sometimes make it harder on other lawyers is with document demands. Often, in litigation, lawyers demand an exceptionally large amount of documents that the other side needs to produce to each party to a case. Naturally, the expectations about what should be produced are never satisfied, because documents are not kept due to the passage of time, or they never existed in the first place. Even if a lawyer conducts extensive searches, the attorney may not find responsive documents even if a client should reasonably be expected to keep such records.
Earlier in my career, I was tasked with producing documents in a case, and I did everything I could to hunt down materials. I called my client and sent them the document demands so that they were familiar with the materials that needed to be produced. Then, I made several visits to my client’s office and personally conducted a search for the materials. After all of this work, I was able to produce thousands of pages of materials, and my client assured me that no other materials existed.
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However, my adversary was not satisfied with my production. Even after I explained all of the steps I had taken to secure the materials, he continued to insist that I was not being forthcoming with materials and he would go to the court and ask for preclusion orders or other relief. At first, I was peeved that the lawyer did not recognize all of the work I had done to secure the materials I produced.
However, I later thought that my adversary was just doing his job in opposing the quality and quantity of my document production. Indeed, a lawyer should rarely be satisfied with a document production since holes in a document production can form the basis of powerful relief issued by the court. In the end, I accepted that I did the best I could with the document production, and I was fine if the lawyer submitted the issue to the court.
As lawyers, it is beat into us that we should not dislike attorneys who represent unsavory clients because everyone needs a defense. Lawyers should also not hold grudges against lawyers who advance positions that make their lives more difficult. Often, adversaries are just advancing positions that give their clients the most advantages, and we are all probably guilty of making arguments that burden our adversaries.
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 [email protected].