Courtesies to Adversaries

Clients often have strong feelings about their opponents. The defendant may be a corporation that stole millions of dollars in a fraud or the plaintiff may be a rogue employee who is lying through their teeth. And when a client hires an attorney, the client may expect the lawyer to show no mercy to the evildoer on the other side of the case.

But lawyers in commercial disputes frequently grant courtesies to opposing counsel. For various reasons, they may grant extensions to deadlines, disclose important information, and consent to various procedural requests.

Why should you keep reading this post about litigation counsel cooperating with their adversaries?

• You were looking for a heartwarming story about enemies becoming friends, but found this instead.
• Your lawyer let your opponent’s lawyer file something late and you want to know why.
• The more you read this blog, the better you feel about your own blog by comparison.

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Lawyers Are Required to Cooperate

Many organizations that govern the practice of law have codes of civility that require attorneys to be courteous to each other.

For example, New York’s Standard of Civility requires attorneys in the state to “agree to reasonable requests for extensions of time or for waiver of procedural formalities when the legitimate interests of the client will not be adversely affected.” Similarly, the Utah Standards for Professionalism and Civility have the same requirement.

In the discovery phase of a litigation, lawyers are also required to cooperate in the exchange of relevant information. For example, Federal Rule of Civil Procedure 37 requires attorneys to cooperate by “in good faith conferr[ing] or attempt[ing] to confer with” opposing counsel before asking the court to intervene during discovery.

So even if a client demands that their lawyer take a hard line against their adversary, ethical rules may still prohibit them from denying them various courtesies.

Cooperation Generally Benefits Everyone

Even if ethical rules did not require professional courtesies, a lawyer is better off in a system where she can reliably give and receive them. Part of this is because lawyers need to interact with opposing counsel frequently, and the job is more pleasant when people are nice to each other. And although the parties may believe that their opponents are bad or dishonest, lawyers understand that opposing counsel is just doing their job.

Cooperation is also better because litigation is unpredictable (note to self: possible name for a blog) and unexpected motions or other deadlines can interfere with a lawyer’s other personal and professional commitments. Without an understanding among lawyers that they can get extensions when needed (or other courtesies), litigators would be unable to do all of the work they needed to do. Alternatively, only large firms with a large pool of lawyers could handle all of that work and lawyers would need to spend extra time teaching their colleagues about the case so they could meet deadlines, all of which would increase the cost for legal services far above its already high costs.

But what if, by denying an extension, a lawyer could win the case? The client may believe that, if her lawyer says “too bad” to an adversary who is about to go off on vacation and therefore cannot respond to a complaint, the lawyer may be doing justice by helping her win quickly and cheaply. But the truth is that the opposing counsel will likely be able to ask the court for an extension anyway and then be less willing to give extensions in return when the client’s counsel wants them. It’s a lose-lose situation.

Courtesies Have Limits

Although lawyers should be respectful of their adversaries schedules, there are numerous instances in which a lawyer should deny requests made by opposing counsel.

For example, while a lawyer should grant extensions for reasonable amounts of time, a lawyer may balk at an excessive request. If a lawyer has a valid reason why her client needs relief in a short period of time, she may deny an extension request that jeopardizes her client’s concern. And general courtesy does not require a lawyer to disclose to opposing counsel more information than she is required to share pursuant the rules of discovery.