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Have you ever found yourself negotiating with a brick wall? Maybe not a wall, but an opponent, coworker, spouse or five-year old so entrenched in her position that it seems to take a herculean effort to procure even the slightest movement?

I’ve previously quoted from the slim but powerful text about negotiation strategy, Getting To Yes. One of the authors of that landmark, William Ury, subsequently wrote Getting Past No: Negotiating With Difficult People. I don’t know about you, but anyone who doesn’t go along with my program is clearly difficult.

Ury developed a five-step strategy for making progress with these . . . er . . . difficult people. The first step is to take your own emotions out of the equation; this will help prevent you from reacting without thinking, which can immediately stall or even end productive negotiations. Ury calls this Going to the Balcony. He describes it thusly:

“When you find yourself facing a difficult negotiation, you need to step back, collect your wits, and see the situation objectively. Imagine you are negotiating on a stage and then imagine yourself climbing onto a balcony overlooking the stage. The ‘balcony’ is a metaphor for a mental attitude made of detachment. From the balcony you can calmly evaluate the conflict, almost as if you were a third-party. You can think constructively for both sides and look for a mutually satisfactory way to resolve the problem.” (Getting Past No (Bantam 1991), p.17.)

Step two is to Disarm Your Opponent. Here, I picture Jason Bourne using some slick Krav Maga move to take and use his opponent’s own weapon against him. Sadly, Ury’s tactic is not so sexy. But it’s easier. The goal is to step to your opponent’s side. This requires active listening, which gives your opponent an opportunity to articulate her position, then paraphrasing it back to her. Ury writes, “It is not enough for you to listen . . . [h]e needs to know that you’ve heard what he has said.” (Id. at 39.) Once you both agree that you understand your opponent’s position, the second part of this step is to create a favorable climate for negotiation. This can result from one or a combination of efforts, which can include  acknowledging our opponent’s feelings and agreeing wherever you can, which can help you “accumulate yeses.” Ury summarizes this step as follows:

“[T]he hurdles you face are your opponent’s suspicion and hostility, his closed ears, and his lack of respect. Your best strategy is to step to his side. It is harder to be hostile toward someone who hears you out and acknowledges what you say and how you feel. It is easier to listen to someone who has listened to you. And respect breeds respect.” (Id. at 54.)

Ury’s third step is to reframe the dispute. “Reframing means recasting what your opponent says in a form that directs attention back to the problem of satisfying both sides’ interests. . . You act as he were trying to solve the problem, and thus draw him into the new game.” (Id. at 61.) This is tough to explain without an example; fortunately Ury provides one. He cites the 1979 SALT II arms talks with Soviet leadership. The US sent a very junior senator, Joe Biden, Jr., to Moscow to negotiate with (read: against) Soviet Foreign Minister Andrei Gromyko. Regardless how you feel about Joe Biden today, he certainly held his own on this early mission.

Gromyko quickly articulated the Soviet’s unequivocal nyet (no) to the US proposal. When it came time for Biden’s turn, here’s what happened:

“Instead of arguing with Gromyko and taking a counterposition, he slowly and gravely said, ‘Mr. Gromyko, you make a very persuasive case. I agree with much of what you’ve said. When I go back to my colleagues in the Senate, however, and report what you’ve just told me, some of them–like Senator Goldwater or Senator Helms–will not be persuaded, and I’m afraid their concerns will carry weight with others.’ Biden went on to explain their worries. ‘You have more experience in these arms-control matters than anyone else alive. How would you advise me to respond to my colleagues’ concerns?’

Gromyko could not resist the temptation to offer advice to the inexperienced young American. He started coaching him on what he should tell the skeptical senators. One by one, Biden raised the arguments that would need to be dealt with, and Gromyko grappled with each of them. In the end, appreciating perhaps for the first time how the amendment would help win wavering votes, Gromyko reversed himself and gave his consent.” (Id. at 61-62.)

See what Biden did? “He reframed the conversation as a constructive discussion about how to meet the senators’ concerns and win ratification of the treaty.” (Id. at 62.) When trying to reframe, Ury suggests posing questions to your opponent. Ask why, why not, what if, and, as Biden demonstrates, how would you do it. This turns your opponent into a collaborator.

Step 4 of Ury’s strategy is to make it easy for your opponent to say yes. He calls this building them “a golden bridge.”  This strikes me as connected in a fundamental way with Ury’s third step, reframing the issue. When Biden solicited Gromyko’s advice, he was, in effect, building him a golden bridge to see the issue from Biden’s (and, therefore, the US) perspective and cross the golden bridge by reversing his entrenched position.

According to Ury, what’s important is to resist the temptation to tell your opponent anything. Telling, aka “pushing may actually make it more difficult for your counterpart to agree. It underscores the fact that the proposal is your idea, not his.” (Id. at 90.) If you can persuade your opponent–overtly or covertly–that your proposal or goal is actually her idea, this builds a golden bridge making it very easy for her to adopt your position. Ury makes several suggestions, including helping your opponent save face, offering her choices and help writing her victory speech back to her superiors or contingent.

Step 5 is when you crush your opponent–bring her to her knees, right? Actually, no. In the final step of Ury’s strategy, while you make it hard for them to say no, this is done by bringing them to their senses, not their knees. Unlike the “power game” which we might instinctively resort to, which involves making threats if your opponent doesn’t agree to your terms, Ury urges instead that we think in terms of educating your opponent of what the alternative is if an agreement is not reached. Again, the better way to educate is not by telling your opponent what you’re going to do, or telling her what will happen, but instead to ask reality-testing questions. Here are three reality-testing questions Ury likes:

1. “What do you think will happen if we don’t agree?”
2. “What do you think I will do?”
3. “What will you do?”

Ury acknowledges that this won’t always work. He reminds us of one of the most important concepts from Getting To Yes, formulating your own Best Alternative To A Negotiated Agreement (BATNA). Before you resort to actually implementing your BATNA, Ury suggests “you should let your opponent know what you intend to do. You want to give him a chance to reconsider his refusal to negotiate.” (Id. at 117.)

The book obviously covers these strategies better and in greater detail. I recommend Getting Past No to anyone who spends a good part of her career–or life–negotiating with difficult people. Then again, don’t we all?

On Wednesday, a 12-member New York jury returned a verdict against Michael Steinberg, a senior portfolio manager with hedge fund SAC Capital Advisors LP, finding him guilty of trading using inside information that allegedly passed through four people before it reached him. An article in today’s Wall Street Journal about the deliberations of the jury forewoman, Demethress Gordon, provides a glimpse into how jurors bring their own experiences to the deliberation process, sometimes filling gaps left open by the trial attorneys.

Ms. Gordon entered the deliberations convinced Steinberg was innocent. The evidence against Steinberg included tips passed to him from his subordinate, an SAC analyst named Jon Horvath, about Dell and Nvidia. Steinberg allegedly placed trades within minutes after receiving the information from Horvath, who was a cooperating witness in the government’s prosecution. Ms. Gordon was initially not convinced by the evidence that Steinberg knew the tips were the fruits of confidential, “inside” information. She rationalized, as the story points out, “he [Steinberg] was the boss and relied on his staff to supply him with information they knew to be proper.”

Following the first day of deliberations, however, Ms. Gordon attended a screenwriting class “that happened to focus on the subtext of characters’ actions.” This made her receptive to an analogy offered, during the second day of deliberations, by another juror “who told her to imagine walking through the door. ‘He told me to go through the door,’ she said. ‘I understood what he meant, without him having to say, ‘Walk to the door. Turn the knob. Step through it.'” It “suddenly clicked. People can understand more than they are told . . . Mr. Steinberg must have known the information he received was based on nonpublic information . . . even if it wasn’t explicitly made clear.” After Ms. Gordon changed her mind and explained her reasoning to the sole remaining hold-out, who agreed, the jury returned a unanimous guilty verdict.

This perfectly illustrates how jurors will sometimes draw from their own outside experiences or intuitions to fill a problematic chasm in the elements of a case (or a defense). While I don’t know more about the evidence either side presented, this suggests to me (1) that the prosecutor did not have or put forth sufficient evidence that Steinberg would have understood, explicitly or implicitly, that the analyst’s tip was inside information (though it is telling that 10 of 12 jurors were apparently ready to convict at the end of the first day of deliberations), and/or (2) Steinberg’s defense attorney did not sufficiently anticipate and exploit this gap in the evidence. Either way, it’s interesting to be a fly on the wall.

Hopefully I won’t ruffle too many feathers with the following pronouncement: appellate law practice is a distinctly different animal from trial or lower court practice and it requires specialized training or experience to do it well.

I know that many litigators advertise to their clients and the world that they can ably handle a writ or appeal. Some can. If you’ve handled appeals in your career, whether through budgetary or logistical necessity, and you’ve had success, perhaps you’ll prove me wrong. But, assuming your client is willing, assuming she can afford it, and assuming you can work effectively, efficiently and cooperatively with an appellate specialist, I want to suggest that your client’s odds of prevailing on appeal will be vastly improved by at least involving an appellate specialist whenever possible.

The remainder of this post proceeds from the premise that it is fiscally and logistically possible to involve an appellate lawyer. A lingering problem arises from the impossibility of knowing, at the outset of a dispute, whether it will result in an appeal and a specialist will ultimately get involved. Certainly some cases are unlikely ever to lead to an appeal; I’m thinking here of disputes which are destined by contract to be decided through binding arbitration. Other cases, by virtue of their issues or parties, are virtually guaranteed to see an appeal–or many; here I’m thinking of a case like Apple v. Samsung. There’s just too much at stake for either party to go gentle into that good night without first exhausting every avenue of appellate review.

I call this a “lingering problem,” but it’s really more of a dilemma. Specifically, what can a litigator do, when it’s unclear if an appellate court will ever be asked to disturb a trial court’s ruling, to improve her client’s chances of success if an appellate issue does later arise?

In answering this dilemma, I solicited input from a true expert. Ben Shatz is a partner at the Manatt firm in Los Angeles, a certified appellate specialist from the state of California, a fellow blogger, a prolific writer and, most importantly, a good guy. What follows is our list of five ways that lower court litigators can make it more likely, if their case ultimately requires appellate review, that their clients will gain the most from hiring an appellate specialist.

1. Involve an appellate lawyer sooner than later. You probably saw this coming, but it’s worth stating. If it is economically feasible, Ben suggests an appellate specialist should become involved early “to help review theories, address key motions, spot potential writ issues, pre-cog anticipated appellate issues, review jury instructions and verdict forms (which are fertile areas for appellate review), and help with post-trial motions (which often preview appellate issues).”

2. Preserve that record. Again, obvious. But in the heat of the battle, my focus as a trial lawyer is almost always on convincing the single robed judge before me, not a panel of appellate justices. Ben suggests that “appellate kibitzing can help make sure points are properly raised and not waived.” So don’t forget to kibitz. And try not to let an impatient trial court judge prevent you from saying all you need to say to make a good record; this sometimes takes fancy footwork, particularly if the judge senses you’re just making a record to use later in seeking to overturn his ruling. (See my earlier post on judges playing games with the record.)

3. Don’t waive notice. Ben reminds us that, “too often, after losing a motion (or anything), trial counsel will meekly waive notice. But formal written notice is very useful in figuring out what happened and when, later down the road. Also, written notice often is the trigger for writ review, so it’s good to have a clear starting date for calendaring.”

4. When in doubt go ahead and order a transcript. This is actually two separate points. First, if you’re in a state like California with a struggling judicial budget, be sure to make sure there’s going to be a court reporter taking down the proceedings at any hearing in which there is even the slightest chance a writ or other review may be sought. This requires both ordering and paying for a court reporter.

The second point comes from Ben: “if you just lost a motion and are thinking about a writ, order a transcript right then; take steps to get a written order; don’t waive notice; ask immediately for a stay (or extension to file a writ, if allowed by the relevant statute).” As you’re probably starting to understand, this fourth point requires you to think about the possibility of appellate review before you actually appear for the hearing. Remembering on the morning of the hearing that you needed to order a reporter will be probably be too late.

5. Maintain clean, organized files. Finally Ben reminds us that “It’s not useful if I’m given papers that are annotated by hand (and thus can’t be used in an appendix).” Remember, too, that your client is hiring an appellate specialist for his or her highly specialized knowledge and skills. These do not include conducting “discovery” through your file to find key documents or exhibits.

So keep these suggestions in mind, even when it’s not yet clear there’s going to be an appeal. And, if there is an appeal, think about calling Ben or another appellate specialist, to assist you in getting it done right.

First, a pop quiz:

Question One: What do you do when you’re trying to negotiate with an opposing lawyer over something small, but important–say an extension to respond to discovery–which, among professionals–people who wear white collars and silk ties to work, who attended years and years of expensive schooling, passed excruciatingly difficult examinations, swore an ethical oath–would seem to be an easy thing to agree upon–what do you do when this opposing lawyer unreasonably refuses, without any explanation, this simple, routine request?

Question Two: What do you do when you’re sitting across from that same lawyer in a cramped conference room, taking his client’s deposition and, over the course of several hours, he repeatedly insults and demeans you, challenges you to justify every third question, asks no less than five times “how much longer” you’re going to be, persistently interrupts you mid-question to interject the start of what will surely be a long, inappropriate speaking objection, and instructs his client not to answer at least seventeen times?

These questions are not directed to what you do the next day, or whenever you ultimately resort to serving objections, or moving the court to compel answers to the deposition questions and seeking sanctions, or asking the court to appoint a discovery referee.  I’m asking what do you do in the heat of the moment, while your heart rate is still elevated.

If you’re me–and believe me I’m not bragging here–you take everything personally, get pissed off, turn beet red and start talking with the snappy sarcasm of a desperate salesman in a Mamet play. You see: I haven’t mastered the Secret Weapon. I can talk a good game. I’ve written over and over about the wisdom of maintaining a professional, cooperative demeanor in litigation. But when the rubber meets the road I struggle to avoid stooping to an unprofessional opponent’s level, or (gasp) worse. No, I haven’t yet mastered the Secret Weapon.

But you can. The good news is that YOU CAN master the Secret Weapon. When the lawyer I’m thinking of is faced with the above, or worse, he pulls out his Secret Weapon and does this: he simply acts nice. He meets rudeness, lack of professionalism–you name it–with an oversized bucketful of fluffy pink kindness.

It’s impressive to see. Picture Roger Federer being pelted with a barrage of ugly, aggressive cross-court winners and absorbing and converting the energy, speed and spin of each angry ball, only to gracefully return it with nothing more than an easy, gentle lob. In fact, like CIA assassin Jason Bourne, whose manner of calm resolve seems actually to increase in a disturbing direct proportion to any rising threat of imminent capture or death, this lawyer’s attitude of kind, gracious, solicitude seems to actually grow in direct proportion to the lack of professionalism of an opponent.

He invariably takes the high road. He literally kills them with kindness. Is it always easy for him? I doubt it. Is he sincere in his “attitude of kind, gracious, solicitude”? Who cares. He’s getting the job done. In most encounters, his weapon immediately deflates a situation that in my fat, clumsy hands would become a runaway train wreck. It works. It really does. Try it next time you’re dealing with a total asshole less than professional member of our profession, you’ll see.

California employers should be aware of significant new state laws which take effect on January 1, 2014. These include:

Protected Categories Expanded to Include Military and Veteran Status. – Assembly Bill 556 adds “military and veteran status” to the list of categories protected from employment discrimination.

Prohibition of “Unfair Immigration-Related Practices” – Assembly Bill 263 prohibits employers from engaging in “unfair immigration-related practices,” which could include contacting or threatening to contact immigration authorities, because an employee asserts protected rights under the California Labor Code. Other immigrant protection legislation effective Jan. 1, 2014 includes SB 666 (business license revocation for threatening to report immigration status), and AB 524 (authorizes criminal extortion for threatening to report immigration status).

Domestic Worker Bill of Rights – Assembly Bill 241 creates a Domestic Worker Bill of Rights. This provides specific overtime pay for a “domestic work employee who is a personal attendant.” The bill has many specific definitions and exclusions.

Heat Illness Recovery Periods – Senate Bill 435 expands meal and rest break prohibitions to include “recovery” periods necessary to prevent heat illness. Penalty mirrors premium for failing to provide meal or rest breaks (i.e., one additional hour of pay for each workday that meal, rest, heat illness recovery period not provided). Unlike the meal and rest period rules which provide a clear guidance on timing, however, the need for a heat illness recovery period is subjective and determined by the employee. Employers with outdoor workers need to ensure their Heat Illness Prevention programs comply with Cal-OSHA regulations.

Leaves Required for Victims of Certain Crimes – Two important new laws. Senate Bill 288 provides protections for victims of certain crimes (including solicitation for murder and vehicular manslaughter while intoxicated) who take time off from work to appear in court proceedings. SB 400 extends protections for victims of domestic violence or sexual assault or victims of stalking, including time off to appear at legal proceedings and to seek medical/psychological treatment. This law adds a reasonable accommodation requirement—which can include implementation of safety measures—for victims of domestic violence, sexual assault or stalking.

Expanded Scope of Whistleblower Protections – California Labor Code Section 1102.5 already provides protections for employees who report violations of federal or state statutes. Senate Bill 496 expands this protection to include suspected violations of a local rule or regulation, and will include reporting violations to “a person with authority over the employee or another employee who has authority to investigate, discover or correct the violation.”

What would his sentences be like? Would they read like his prose, if the prose that he wrote read like this?

“It was this look on the face that (slowly) turned left to look at her from the ambulance–a face that in the very most enuretic and disturbing way both was and was not the face of the husband she loved — that galvanized Jeni Roberts awake and prompted her to gather every bit of her nerve together and make the frantic humiliating call to the man she had once thought very seriously of marrying, an associate sales manager and probationary Rotarian whose own facial asymmetry — he had suffered a serious childhood accident that subsequently caused the left half of his face to develop differently from the right side of his face; his left nostril was unusually large, and gaped, and his left eye, which appeared to be almost all iris, was surrounded by concentric rings and bags of slack flesh that constantly twitched and throbbed as irreversibly damaged nerves randomly fired — was what, Jeni decided after their relationship foundered, had helped fuel her uncontrollable suspicion that he had a secret, impenetrable part to his character that fantasized about lovemaking with other women even while his healthy, perfectly symmetrical, and seemingly uninjurable thingie was inside her.” (Brief Interviews With Hideous Men, “Adult World (I),” p.153.)

Scary? Sure, if you’re the appellate justice’s long-suffering clerk. You might wonder, then, why legal writing guru Bryan Garner took the time to interview said Literary God–David Foster Wallace–about persuasive legal writing, before the LG’s untimely death by suicide in 2008.

Well, wonder no longer. As highlighted in a recent article by Garner himself in the ABA Journal, it turns out that, although his fiction is often . . . er . . . challenging, DFW has something to say about persuasive writing, not only from the perspective of an innovative novelist, but also as both an essayist and an academic. Among the things he said:

“So when I teach nonfiction classes, I spend a disproportionate amount of my time teaching the students how to write transitions, even as simple ones as however and moreover between sentences. Because part of their belief that the reader can somehow read their mind is their failure to see that the reader needs help understanding how two sentences are connected to each other—and also transitions between paragraphs.

I’m thinking of the argumentative things that I like the best, and because of this situation the one that pops into my mind is Orwell’s “Politics and the English Language.” If you look at how that’s put together, there’s a transition in almost every single paragraph. Like: “Moreover, not only is this offense common, but it is harmful in this way.” You know where he is in the argument, but you never get the sense that he’s ticking off items on a checklist; it’s part of an organic whole. My guess would be, if I were an argumentative writer, that I would spend one draft on just the freaking argument, ticking it off like a checklist, and then the real writing part would be weaving it and making the transitions between the parts of the argument—and probably never abandoning the opening, never letting the reader forget what the stakes are here. Right? Never letting the reader think that I’ve lapsed into argument for argument’s sake, but that there’s always a larger, overriding purpose.”

I’m looking forward to the book that contains the fruits of this interview, Quack This Way: David Foster Wallace & Bryan A. Garner Talk Language and Writing. Royalties from the book will apparently support the David Foster Wallace literary archive housed at the Harry Ransom Center at the University of Texas at Austin.

Thank you, ABA Journal for generously including At Counsel Table in the 2013 Blawg 100!

I was pleased to see the familiar names of some great blogs on the list this year, including Max Kennerly’s Litigation and Trial, Popehat, FMLA Insights, Careerist, Philly Law Blog and Jonathan Turley.

But I was disappointed to see a slew of really great law blogs were left off the list. These include Associate’s Mind, What About Clients, My Shingle and the reliably irascible Simple Justice. I can only think these blogs have become simply too rich and famous for inclusion in the Blawg 100. But I highly recommend each of these sites; visit them often.

I also encourage you to register and vote HERE for your favorite blogs, which could include At Counsel Table.

Thanks, again, ABA Journal.

We could debate for hours whether compelling public speakers are born with that gift or they achieve it through diligent practice. I suspect that, like many skills, it’s probably a bit of both. Few would disagree that everyone benefits from practice. Practice with honest feedback can be particularly helpful. This is why I’m a big fan of Toastmasters.

I think it’s probably also true that many speakers can sometimes make major improvements just by making a small tweak in the style, content, or both, of their presentation. Here I’m thinking about some advice I came across in Brian Johnson and Marsha Hunter’s recent book, The Articulate Attorney (2nd Ed. 2013). They discuss the difficulties we encounter in maintaining audience attention. This problem is crucial if your goal in speaking is anything other than pure entertainment because it is unlikely your audience–a jury, for example–will process and retain anything you say if they’re not paying attention. Johnson and Hunter write:

“Listeners pay close attention to the beginnings of presentations. Minds often wander in the middle, and retention drops. When the listener gets a signal that the end is near–‘In conclusion . . .’–attention increases once again. Primacy is the first thing listeners hear; recency is the last.” (Id. at 85.)

I have elsewhere heard a variation on this observation, with the attendant advice that one should structure a presentation so that the really important information comes at the beginning and the end. I suppose that’s better than nothing. But the logical implication is that the information that comes between the beginning and the end is less important, or not important at all. I don’t know about you, but I try to leave information that is less important or unimportant out altogether. And we can’t very well just have a beginning and an end with no middle, can we?

Johnson and Hunter offer a superior alternative. They urge speakers to “chunk,” or divide larger bits of information into smaller chunks, which is easier for the human brain to receive, process and retain. Additionally, rather than a speech which consists of one strong beginning, a middle and one strong ending, they urge speakers to create several rather discrete chunks, each with its own beginning, middle and ending. They write:

“Since beginnings and endings are good, create more of them. Rather than conceive your presentation as having one beginning and one ending, clearly delineate each topic area. Begin new topics with a headline (begin/primacy) and explicitly mark the conclusion of the topic with a wrap-up (end/recency). When your major ideas are demarcated in this fashion, your presentation will have many beginnings and endings. Each time a new topic is headlined and closed out, the daydreaming (or emailing) listener’s attention is refreshed.” (Id. at 87.)

So go on, be a “chunker.”

Do you fight over discovery? Admit it. It’s ok, we’re all friends here, no?

Apparently lawyers still wage discovery battles. I won’t pretend that I’m immune. I still mix it up with the best of them. But I came across an article in the November, 2013 issue of Practical Law which attempts to make a compelling case why we might serve our clients better by adopting a spirit of cooperation.

In their article, “Learning to Cooperate,” Jonathan Redgrave and Peter Hennigan talk about The Cooperation Proclamation originally published by The Sedona Conference in 2008. They say:

“At the time of its release, The Cooperation Proclamation provided attorneys with a practical, if aspirational, framework to understand cooperation. Today, there is really no longer any question of whether or not counsel should cooperate in discovery. Cooperation is required by the current and proposed rules, expected by the courts and consistent with attorneys’ ethical obligations. Perhaps most important, cooperation is also what the clients want.” (Id. at 27.)

Well hold on now. Isn’t litigation an adversarial process? What about zealous advocacy? We’re talking about opposing parties and opposing counsel here, right?

Merriam-Webster defines “cooperation”–which, in case you wondered, is pronounced (?)k?-?ä-p?-?r?-sh?n–as “1 : the action of cooperating: common effort; 2 : association of persons for common benefit.”

“Common effort?” “Common benefit?” What!?! Your guy sued my guy, right? You’re demanding some ridiculous sum of money and, because my client won’t just pay you, you’ve prepared and filed a civil complaint, dragging my client into court, isn’t that right? Why on God’s green earth would my client want to make any common effort to do anything for your client’s benefit?

Before we get our dandruff up,† let’s stop for a second and find out what “cooperation” is supposed to mean in this context. Are we supposed to just give in? Roll over? Do our opponent’s job for them? The authors claim the answer is no.  Citing the Proclamation, Redgrave and Hennigan say:

“The Sedona Conference explicitly states that cooperation:

•  Is not capitulation.

• Is not an abdication of appropriate and vigorous advocacy.

• Does not require volunteering legal theories to opposing counsel or suggesting paths along which discovery might take place.” (Id., citing The Case for Cooperation, 10 Sedona Conf. J., 339, 340, 359 (2009).)

What’s left? Here, the authors offer some “ABCs of Cooperation.” A few of these make a lot of sense:

• “Be flexible. Like any negotiation, counsel may have to compromise or use alternative means to get the discovery or relief that the client needs.

• Consider what discovery is truly needed, and not just desired.

• Document the agreements reached with opposing counsel, as well as any areas of dispute, and try to obtain resolution without the court’s intervention where possible.” (Id. at 29.)

I can go along with these. But I think it needs to be said that the rationale underlying this spirit of cooperation should properly be that it ultimately benefits our clients. If done properly, cooperation in litigation and discovery saves our clients money. It makes their lives easier. As the authors point out:

“The best argument in favor of cooperation is that clients want it. Clients are beginning to realize that a scorched-earth approach to discovery, and the wasteful and time-consuming discovery disputes such an approach invites, rarely (if ever) serves their interests. Moreover, clients want cooperation because they recognize that being cooperative enhances their attorneys’ credibility with the court.” (Id.)

Where I part ways with the authors is their appeal to some other, ethereal motive for cooperation. They spend a lot of time citing various courts and model rules, etc. and harp on about “duties to the tribunal, the judicial system, opposing counsel and opposing parties.” (Id.) Blah, blah, blah. Save it! What matters at the end of the day–at least for those of us in the trenches–is getting the best possible outcome for our clients. If the straightest road to that result is through cooperation, I’m all for it. But let’s not forget it’s our client–not opposing counsel or opposing parties–who keeps the lights burning.  

†The earliest known citation for this strange saying was in the April, 1853 Wisconsin Tribune, wherein someone apparently wrote: “‘Well, gosh-all Jerusalem, what of it?’ now yelled the downeaster, getting his dandruff up.”

I previously wrote about the circumstances in which it makes sense strategically, financially or otherwise to involve local counsel. Here I want to draw on my experiences as an attorney who has frequently both hired and been hired as local counsel to offer some suggestions on ways you can be an outstanding local counsel.

One observation at the outset. Some lawyers or firms view the role of being local counsel to another “lead” lawyer or firm as less than desirable. They see it as somehow akin to being a second class citizen in the context of a lawsuit (or, I suppose, deal). While lawyers who have this attitude will usually swallow their pride and do the work, assuming they perceive the engagement as fiscally attractive, they never really put their hearts into it. I’ve had good fortune over the years with the firms I’ve hired as local counsel. And I hope my client firms have felt I brought value to our cases.

But I have sensed this kind of friction on occasion, particularly where my partners and I, as lead counsel, insist we do tasks that local counsel believe (perhaps accurately) that they would perform better and cheaper. This decision is usually based either on our financial arrangement with the client (a flat fee, for example) or because we perceive the client expects that we, as lead counsel, will do the work. There’s not much to say to local counsel in these circumstances beyond, I suppose, get over it.

With that piece of throat-clearing out of the way, here are some thoughts about what local counsel can do to set themselves apart and, in doing so, make future engagements more likely.

1. Put yourself in lead counsel’s shoes. Acting as local counsel is unique and calls for a kind of flexible, outside-the-box kind of thinking. Rather than “how would I handle this (situation, development, procedural requirement, etc.)?” the relevant question becomes “what does the client (i.e., lead) firm need to know in order to make an informed decision what to do under the circumstances.” This can be challenging because it may require a lawyer to suppress or ignore her own instincts about what to do, which sometimes conflicts with what the client/lead firm ultimately decides to do.

2. Don’t take much (or anything) for granted. Experience litigating in multiple venues may give us an idea how things are “generally done.” But some jurisdictions do things radically different. For example, the state courts in my home, California, have a very specific procedural scheme, particularly with respect to expert discovery. Out-of-state practitioners struggle to follow our rules of civil procedure because they are unique. Other states adopt procedures that seem to mirror the Federal Rules. The key for local counsel is not to assume your lead counsel knows what is required, even if your state court procedure is mostly on par with the Federal Rules.

3. What do you know about the judge? This is probably obvious, but one of the reasons to hire local counsel is for information and to have local connections. The best local counsel are active in their local bar association and/or Inns of Court. Excluding improper ex parte communications or other unethical influence, it is really helpful when the judge recognizes and respects our local counsel. Educating lead counsel about the judge is another area that is really helpful. You are our eyes and ears on the ground in the local venue.

4. What do you know about opposing counsel? Ditto from above. Even if not friendly or social, do you have–or can you develop–the kind of rapport with opposing counsel that will easily facilitate extension requests or other courtesies? Does opposing counsel have a pattern? Are they lazy until the last 90 days before trial? Do they always fight hard and then settle? Are they competent in front of a jury? Do they know the judge well? Even if you don’t know the answers to these questions, you should have the resources (i.e., connections within the local bar) to ferret them out.

5. What makes your venue potentially unique? This goes back to not assuming anything. The procedural routines you’ve dealt with your entire career may be completely unique and unfamiliar to your lead counsel. Think of this on both micro and macro levels.

6. Exponentially increase lead time. I’ll confess this has been a personal challenge, but you absolutely must think far in advance and let your lead counsel know about upcoming events and deadlines.

A perfect example is California’s summary judgment procedure. I cannot speak to how summary judgment motions are scheduled in other jurisdictions, but the California Code of Civil Procedure requires dispositive motions be heard 30 days before trial. The Code also requires 75 days notice (assuming personal service) of the motion (with additional notice if served by mail, overnight, etc.). While this seems easy to calculate, the rub comes with the clogged dockets of our virtually bankrupt state court system, which can make it all but impossible to ultimately schedule a hearing date within the necessary window if a party does not begin the scheduling process very early. There is authority which suggests the court’s docket, etc. cannot deny a party the right to bring a dispositive motion, but the practical impact of delay will include expensive additional, sometimes nail-biting  procedures, like ex parte applications to have motions specially set the hearing and/or to reduce notice.

7. Communicate, communicate, communicate with lead counsel. And then make sure you communicate some more. Seriously.

8. Don’t friggin’ poach the client. The idea behind taking this work is not as an angle toward poaching the client away from lead counsel. If you see it otherwise, you’re not doing anyone, including yourself, any favors.

9. Do what you can to make lead counsel shine in the eyes of the client. When you’re hired by a general counsel, legal staff member or claims adjuster, it should be an important goal to make that person look good in the eyes of those to whom they answer, whether it is a board of directors, a more senior legal staff member or a claims superintendent. When you get a local counsel gig, make it a goal to make your lead counsel shine in the eyes of their client.

Because I am at the stage in my career where I am aggressively building my own practice, I take opportunities to act as local counsel for what they are–great opportunities to work for new clients and with different lawyers. There’s no reason you shouldn’t do the same.