The best single piece of advice I ever got as a young lawyer came on one of the first days of my clerkship with the late U.S. District Judge D. Brook Bartlett. My fellow clerk Jon Duncan and I were visiting Judge Bartlett at home to go over a pile of orders and bring him the Big Mac and fries that he’d been craving. He was working from home while going through a round of chemotherapy following a bone marrow transplant to treat the cancer that would ultimately take his life a few years later. Judge Bartlett gave me a lifetime’s worth of lessons in the two years I was honored to spend with him, and he serves as a role model for me both as an accomplished lawyer and as a person of extraordinary integrity, wisdom, and courage.
But this particular piece of advice came from the Judge’s wife, Karen Iverson, an accomplished lawyer in her own right. Karen had been a partner in a big Kansas City firm before deciding to follow her passion and pursue a second career in theatre design. I think it was when we were discussing how the Judge should deal with a minor discovery dispute, or a dispute about a request for a continuance or extension of time, that Karen let us in on her key to success: kill your opponent with kindness.
Agree to reasonable extensions of time and other requests, she said. Be accomodating to opposing counsel. Don’t raise an objection just because you can if it doesn’t help your client. Give complete and thoughtful responses to discovery requests. Don’t think it’s necessary to fight about every minor issue. Then, when it’s time to argue about something important, you’ll have the credibility you need for the court take your position seriously, and you might even catch your opponent off guard.
I haven’t always followed Karen’s advice. I recall more than a few shouting matches with opposing lawyers, especially during my first years as a litigation associate. Those were arguments that never got me or my client anywhere. No matter how earnest my argument, my opponent wasn’t going to be persuaded by it, and losing my cool wasn’t helping me keep the clarity of thought needed to develop and follow the best strategy for my client’s cause.
When I have followed Karen’s advice, though, it’s never steered me wrong. Whether it has been due to following her strategy of civility, or just fantastic luck, I have been blessed in more recent years to have developed mostly collegial relationships and even friendships with opposing lawyers. Getting along with opposing counsel has never, in my view, cost my clients anything. I can meet all of my ethical obligations to my client and be a zealous advocate on the meaningful issues in the case without being a jerk to opposing counsel. And the benefits of the approach are numerous, both for me and my clients. I get extensions of time when I ask for them; I don’t get threatened with motions for sanctions; I am taken at my word in discovery without having to “prove” that I have fully complied with a request; settlement, even without the aid of a mediator, is a much easier process; and maybe most important at all, my stress level stays fairly low.
I’m sure part of the explanation for the civility that I have encountered in my practice may be the nature of a consumer class action practice itself. The cases drag on for years even under the best of circumstances and the lawyers know from the outset they are going to have to deal with each other for a while, so they might as well get along. Decision-makers on both sides tend to make their decisions based on a cost/benefit analysis as opposed to emotions. The lawyers know that the size of the cases already make them a burden on the court, so they may tend to tread more lightly when it comes to deciding whether to resort to the Judge to resolve minor disputes. But whatever the reason, my many positive relationships with opposing counsel have only strengthened my belief that the Golden Rule is not inherently inconsistent with the practice of law.
Maybe someday, years from now, a seasoned litigator will look back to his or her time as a young lawyer and remember hearing from me the same advice that Karen gave to me those years ago. If so, I will be able to count my legal career a success. Karen’s advice has withstood the tests of my experience, although I still have to remind myself of it from time to time. Practicing with civility isn’t just a way to get opposing lawyers to like me, and it’s not just the right thing to do–It’s also the best way I know to serve the interests of my clients.