One of the best things that you can do is to decide how YOU will practice law. Most lawyers do not take time to ask themselves, “How do I want to practice law?” and write down their answers. Instead, they let the other side decide how they will practice. This “strategy” is not a strategy at all; it is simply an adoption of the approach used by the other side. Let’s take a look at some of the ways this manifests, and the challenge when you simply adopt the patterns of your opponents.
Many lawyers are procrastinators. We do not usually put off the easy stuff, we put off the hard stuff. If you are trying to work out an issue but the other side simply puts you off, it may be easy for you to put it off too. This leads to all kinds of last minute preparation, panic, and a feeling of a loss of control of your practice. Many cases are settled on the courthouse steps, not to reach a good result, but simply to “get it done.” Unfortunately, this often leads to poor results for your client. Also, if you think that your client will not see that you were caught by your own procrastination, you are mistaken.
There are many tools to assist you in getting the other side to the table, or to stop putting the case off. Letters, motions, Court Rules; they all play a role in making things happen for our clients. My favorite is to pick up the phone. If you do not get returns calls, you have your answer – the other side is procrastinating.
Many lawyers confuse things. They seek the complicated where the simple serves just fine.
I was working with a lawyer in his first years of practice. He would receive a brief or motion from his opponent. The first thing he would do is to sit down and start writing his reply/rebuttal. He would go point by point to his opposition’s positions. When he was done, he would polish it a little and declare it “finished.” I would look the reply over and ask if he had drawn up an outline for his counter brief or counter motion. At first, he would say “no”…later he would say “yes” though he had not.
I explained that in replying point by point, he had adopted his opponent’s weaknesses. He had adopted his opponent’s line of reasoning. In adopting his opponent’s work, he had fallen into a trap. Most of what he wrote was written in the “passive” and not the active. He replies were boring, rambling, and anything but persuasive.
Time and time again I encouraged him to read what his opponent had written. Think about what was written then outline the strongest counterpoints. Time and time again he would skip this step. He never developed the ability to destroy the other side…he employed the lazy defense. He skipped the part when he would have to “think.” Eventually, he stopped practicing law and went into another business…probably for the best.
Where do you put your energy?
Recently, I filed a brief citing the applicable law (five factors for the court to consider) and the law on the burden of proof (ours was the preponderance). My opponent’s reply cited law claiming that we had to meet eleven factors and had to establish them by the “clear and convincing evidence” standard. Again, the reply added all kinds of confusing claims and arguments. My legal assistant started off in the same way the prior associate had, being drawn into the fray. I asked her what she was doing and she said that we needed a reply.
I am of the belief that sometimes the more energy you put into something, the more it seems that you are validating it. We did not file a reply and I handled it at the hearing. The judge quickly made it clear that we had accurately stated the law and went to the important facts we had set out. Our opponents had not managed to muck up the issue, slowly conceded the facts, and we were quick to the win.
In the meantime, the judge learned that we applied the correct law and precedent and had learned that my opponent was quick to advocate for inapplicable law and precedent. After the hearing, the other attorney mentioned to my legal assistant that she really did not like litigation. No wonder. Most judges will not forget an attorney who argues inapplicable law in order to attempt a win. This is a lesson in maintaining your credibility, a lesson for another article.
Decide how you are going to practice law and it will become your strength, and not a default to the weaknesses of others.
How have you decided to practice law? Let us know in the comments!
Brian Vincent has over 30 years of experience as a business law attorney and has worked extensively with business owners to protect and defend their interests. Contact Brian online or at (616) 608-4440 with your questions.