In working with newer lawyers, my advice for handling any type of litigation, whether it is complicated, simple, or contentious, is always to pick up the phone and call the other side. Yet, many lawyers are still deterred from calling counsel and instead revert to written communication.
I understand the hesitation – it can be terrifying to address opposing counsel, especially if you are new to the practice of law. We spend all of law school learning to draft well thought out explanations of our cases, but we spend little time learning how to navigate day-to-day communication with the other side. We feel safe behind our keyboards where we can re-read our responses for accuracy and precision. And opposing counsel’s written communication can often be off-putting or sometimes just nasty. Who wants to call someone who uses the words “vigorously defend” in their communication?
However, I’m here to encourage you, the reader, to avoid the battle of the keyboards and pick up the phone to address opposing counsel directly. Here are some of the reasons why I always encourage lawyers to call counsel, especially in contentious litigation:
1. Putting a voice to a name: Counsel’s tone in written communication is often different than on the phone. I can’t promise that all counsel will be friendly, but in my experience, most lawyers are happy to have a call and exchange pleasantries. Often, the person on the phone is drastically different than the person drafting the response letter.
2. Getting to the problem: Over the phone, counsel can often share insights or observations about their client’s position, which they would not be caught dead sharing via email. You can tell by a change of voice/tone or by the use of certain language which issues are or are not as important to opposing counsel’s client. You will certainly glean more information about the case over the phone than you would by exchanging emails. This is an opportunity to throw out ideas and get an immediate response – “yeah, maybe I can talk to my client about that” or “absolutely no, non-starter” – both will help you focus your case strategy.
3. Creating a relationship: Regardless of your area of law, you will often work with the same lawyers repeatedly throughout your career. Creating respectful relationships in this industry is the best way to expand your practice and network, while assisting your clients!
4. Expediating the process: Picking up the phone will move the litigation process along faster. Lawyers are busy, and it is easy to avoid contentious emails. Making a phone call will help both sides move through issues at a faster pace, because counsel have each other’s undivided attention. Also, most emails are often flipped to the client for comment, which can prolong any process.
After a first round of written communication with opposing counsel, I recommend suggesting a call. If a lawyer rejects your invitation, then you probably don’t want to speak to them. But you will find that most lawyers are relieved to get on the phone! To prepare for the call, jot down some rough points that you want to discuss or some predicted responses, but trust in your abilities and your knowledge of the case.
So whatever file you have on the desk right now, grab the phone and start dialing!
About the Author
Jill Lewis is a lawyer and the co-founder of of Resolutions at Work, which conducts external workplace investigations where there are sensitive allegations or complex issues at play, and/or where an internal investigator cannot be neutral. Resolutions at Work also mediates disputes and offers a range of training workshops for employees and employers.
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