As lawyers, our task in our careers is like second nature: be the best possible advocate for the client. Many times, in the heat of the battle, you may receive a snarky e-mail or phone call from opposing counsel.
You may receive a threatening letter, that in your mind, crosses the line from business to personal. Rule number one in professionalism is Do Not Respond In Kind. Every single time you have the opportunity, take the high road.
What is our purpose as advocates for our client?
In the event opposing counsel attempts to goad you into an argument over discovery issues, issues about the theory of your case, or issues related to damages, you should always remember your role before responding. Your role is to be the best advocate possible for your client’s cause.
Will engaging in an argument help get a higher settlement for your client? In virtually every single scenario, the answer is no. Further, you want to maintain as good a relationship with opposing counsel as possible. The person with the purse strings in your case, the insurance adjuster, will listen to the defense attorney’s advice, and if you are crossways with defense counsel, that does not help your cause.
Plus, the last thing you want to do is engage in some petty issue that could lead to hearings, sanctions, a bar complaint, or even just developing a reputation for being difficult to work with. The most successful Plaintiff’s lawyers keep their charm and stay above the fray.
In addition, the presiding judge is not going to be sympathetic to either side on a dispute that has arisen between the attorneys. Even when opposing counsel attempts to bring this issue to light in open court in the presence of the judge and other members of the bar who may be lingering around, (1) stay professional, and (2) respond with integrity without opinion with facts about the issue.
How to respond to accusations of unfair dealing
The biggest question is how (or whether) to respond to accusations from defense counsel. For example, let’s say a dispute has arisen with defense counsel accusing you of receiving, and withholding, relevant information pertaining to the trial that you have failed to produce in discovery.
You receive an e-mail from defense counsel that accuses you of withholding this relevant information, and the email demands to immediately know when, how, and where you received information that has arisen in the course of discovery. The email ends with a threat of sanctions, a bar complaint, and some other ad hominem language that you were shocked to receive.
If you don’t have any such information, or if you just learned of pertinent information and produced it upon receipt, many lawyers would advise to simply ignore the email. Others would suggest to politely correct the record.
Your response, if any, is a strategy decision on your part, but you should remember that any response could very well be read by the judge or the committee on professional conduct, whether it’s in the form of a letter, an email, or a voicemail. Your first inclination is that you should always save your ammo for the jury. However, these conversations could arise in a hearing over a dispositive motion, so that is one reason in support of sending a polite response to correct the record.
Dealing with difficult attorneys can be an unpleasant experience. You should always document these issues and have a good index as to all allegations so they can be easily retrieved if they are raised in court. And remember, our task is to obtain the maximum recovery of our client. Period.
Author of this post is Steve Harrelson who has successfully presented personal injury cases to juries all over Arkansas and Texas. If you or a loved one has been injured or killed due to the negligence of another person or company, the lawyers at the Harrelson Law Firm stand ready to help.