Tuesday, October 7, 2008

I'm Sorry You're A Jerk (Lawyering 101: Professionalism)

Over at Legal Antics, Nicole Black has a great letter from Dallas Attorney Jeff Murphrey to his opponent in a case, Dale Markland. The problem stems, apparently, from Markland's failure to be accommodating on a deposition date when Hurricane Ike blew threw town, causing damage to Murphrey that needed to be attended to. This included excrement and other raw sewage and other nasty details. His apology letter is an instant classic. (Addendum: You can read both sides of the story if you want to decide was the discourteous one. See update below.)

Contrast that letter to a recent conversation I had with opposing counsel in one of my cases. He made a motion and I needed more time to respond. It went like this:

Me: I need another two weeks on the xyz matter to put in my papers.
Him: Do you have a reason?
Me: Yes
Him: What is it?
Me: I would grant you the same courtesy if you asked.
Him: Good enough for me.

The lesson to all those that think they can gain some litigation advantage when the other side has a problem? What goes around comes around. The professional courtesy you seek two years from now either on this case or an unrelated one, either because you have a conflict or your kid became ill at a very inconvenient time, will not be returned if you fail to extend those courtesies yourselves.

(Also at Above the Law, WSJ Law Blog, Houston Press, and no doubt elsewhere)
=========================================================
Updated 10/13/08: Recipient of "I'm Sorry" Letter Fights Back with New Website To Regain Reputation

Labels: Law Practice

posted by Eric Turkewitz
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Comments:

It would be also nice eric if you guys (lawyers/judges) showed an iota of courtesy to those of us on the other end of the table. Endless postponements for whatever reason that damage our livelihoods would be nice to be considered. Frankly I have never seen a lawyer give a damn about that end of the equation, that is unless he/she may get 40% of it at the end.

# posted by  Anonymous : October 07, 2008 7:11 PM

 

Endless adjournments do not generally benefit plaintiffs, so the my requests for them are relatively rare.

And New York attorneys don't get 40%. In general liability PI it is 33% and in med mal it starts at 30% and slides down to 10% as the recovery increases. Of course, it is common that those fees are shared by multiple lawyers so the real fee is generally lower.

# posted by  Eric Turkewitz : October 07, 2008 11:42 PM

 

I'm unclear on how this issue is resolved ethically wrt the obligation to the present client. (Since I have no doubt that you're a smart person and ethical attorney, I'm sure that it is resolvable; I'm not asking whether as much as how.) If you believe that you can gain some advantage (no matter how small) for your present client in the present case by being a jerk and not agreeing to a continuation/adjournment/delay that may disadvantage the other side, on what basis can you agree to that continuation/adjournment/delay? Is it that the advantage is de minimus, or something else?

# posted by  Anonymous : October 13, 2008 11:58 AM

 

If you believe that you can gain some advantage (no matter how small) for your present client in the present case by being a jerk and not agreeing to a continuation/adjournment/delay that may disadvantage the other side, on what basis can you agree to that continuation/adjournment/delay?

It's part of the old adage of people being penny wise but pound foolish. Hostility breeds more expense and delay. Expense and delay is not good for my client.

While you might give up something small now (and that is debatable since the court would no doubt grant any reasonable application for an adjournment), you are likely to get back in exchange what you have given.

And, in fact, a poisonous relationship between counsel creates further problems since it becomes harder to settle issues both large and small. A good relationship might mean that discovery issues can be resolved without the need for motion practice. When the motions come, the time and expense go up.

And, of course, a poisonous relationship -- where the lawyers can't even stand each other -- makes an ultimate settlement that much more difficult. While some cases can never be settled, you wouldn't want to take one that can be settled and put it into the "no way" category simply because the lawyers can't look at each other.

# posted by  Eric Turkewitz : October 13, 2008 12:15 PM

 

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