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Margaret Klaw

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Opposing Counsel

Posted: 02/15/2012 9:20 pm

It's a club, and we all know it. We're joined together through a common work life that can be difficult, emotionally intense, sometimes exhilarating, and sometimes thankless. I'm talking about my colleagues -- my fellow members of the family law bar. I've been practicing in the same community for a long time. I have relationships with lawyers I've faced as opponents over and over again; we have a shared history. The fact of our lives as lawyers is that clients come and go, but our relationships with each other can endure for decades.

Some clients find this confusing and upsetting. They don't understand how I can zealously advocate for them against someone I have a long-standing professional friendship with. They assume this will compromise my representation; that I need to dislike opposing counsel as much as they dislike their ex in order to be a "pit bull" (remember when the animal metaphor of choice was "shark"? So 2000.)

These clients are completely wrong. Having a lawyer on the other side of a case that I know, trust and respect, and who feels the same about me, makes it way easier to resolve the case. I have credibility with that lawyer -- when I argue forcefully that I expect to do better in court than what he's offering me, and explain why, that lawyer is likely to pay attention. When that lawyer explains his position to me on a point of law we disagree about, I can imagine how he would argue the issue to a judge, how effective he'll be when he does it, and take that into account in doing the delicate calculation about whether to recommend settlement vs. trial. The benefit to my client is that the case is more likely to settle, and to settle better.

But, my client might ask (and some have): 'How can you go into court, pour your heart into arguing passionately with opposing counsel about every point of evidence, decimate her client on cross examination, and then leave the courtroom and start chatting about where her oldest child just got into college and where she's going on her next vacation?' Because court is, at some level, theater. here's a reason we put the judge in a black robe and the lawyers in suits (costumes) and have the lawyers stand in assigned places, rise to address the judge, and follow specific, formal protocols (stage directions). We are playing roles. Which does not mean we're playing games. Or that we don't care deeply about our clients and the outcome of their cases. These are extremely serious and important roles -- they have evolved over centuries as an organized and effective way to resolve disputes -- but they are roles, nonetheless.

When we leave the courtroom, we shed the role. Or we should. Some lawyers, usually less experienced ones, are unable to, and can be very hostile to opposing counsel. This makes them not only unpleasant and difficult to deal with but, ultimately, less effective advocates. If they've crossed the line to the point where they are pursuing a personal vendetta, their ability to clearly and dispassionately assess what's best for their clients is compromised.

And then there's the fact that if we internalized our clients' personal battles to the extent that they spill over into our interactions with opposing counsel, we'd burn out in a heartbeat. Civility and calm is sorely needed in this field, and if our clients can't manage it with their spouses, the least we lawyers can do to dial down the heat is to practice it, daily, with one another.