Cooperation

Ernie The Attorney posts about the reluctance of adversaries to cooperate to solve a problem.  I have posted many time about what I have not too kindly called the asshole effect the pervades too many practices -- especially litigation practices.  I know this is a term that might be a little too indelicate for Ernie, who is a gentleman, but it stems from the bestselling book Bob Sutton's bestselling book, the No Asshole Rule: Building A Civilized Workplace And Surviving One That Isn't.

One of the things that Bob Sutton covers is the huge TCA (Total Cost of Assholes) in today's workplaces.  I have contended that the cost on society, and to businesses that employ such attorneys, and to the legal system is at least equally as great, because the ultimate result is that it runs up the costs of litigation in ways that are not even recognized.

It starts, I think, with the over aggrandizing of the role, image, perceived method and personality of litigators.  I guess we are all guilty of it to some degree, but we rely too much on, and our clients come to wish for us to employ, trickery and hard nose tactics that have nothing to do with the immediate issues at play, to "win" a case, as opposed to solving a problem.  This is just so unnecessary.

Case in point.  I received an Answer from an attorney on a case I filed in which the creditor, in our justified opinion, willfully violated the automatic stay in a bankruptcy.  In other words, the creditor violated an injunction issued by the Court instructing it to specifically not undertake certain activities.  Now, there might or might not be any number of legitimate excuses or defenses in such a case.  However, when I called the attorney, the response did not deal with any such defenses.  He said, "the client has been on your blog, and it does not want to become a target of your law firm".  I responded, "So, your client wants to try and make this case about me -- the attorney that had nothing to do with the bankruptcy or the violation ... Not only does that not sound like much of a legal defense, in that I have never sued your client before, I am not sure how it has become a target of anything I do.  I do not go around targeting anybody.  Cases are referred to me and I refuse most of what I am referred".  He said, "Nonetheless, that is its position".

The interesting point is that this issue is raised by this particular attorney in almost every case on which he is on the other side.  Further, his institutional clients do not seem to raise this issue when he is not representing them.  So, the issue is not necessarily the financial company he represents now.  It is him.  Pop your client with a wet towel until you whip it into a frenzy not about the dynamics behind the case, not about the violation, but about the attorney the other side, and then bill, bill, bill.  Is my client taking advantage of the financial company, or is its own attorney?  It tend to think the latter.

I always call the attorney after an Answer is filed, if they have not called me first.  You can always tell a lot from the tenor of their voice and what they say.  We know the attorneys that have nothing but contempt for you, your client, the case.  It is like they have to put themselves in a bowl and intentionally whisk themselves into a froth about every case they take.  Certainly, it is a self-fulling income wise to do so, but too often it is the nature of the varmint that makes its way into the realm of litigation.  Firms, and especially Big Law, tend to promote barbarians.  The client that feels aggrieved might want a jument, but they mistake a jackass with someone that can actually do the heavy lifting.

I posted about this mindset recently when writing about the movie Michael Clayton. I think trial lawyers particularly need to be more humble, to quit looking at themselves as some kind of litigation jahovah, and more like a janitor.  As George Clooney said in the movie, "There is no play here.  No angle.  No champagne room.  I am no mircle worker.  I am a janitor.  The math on this is simple.  The smaller the mess the easier it is for me to clean up".

But, too many trial lawyers do not want to be janitors.  They want to be Rambo, and therein lies the problem.

It is alright to have a position and still want to cooperate to narrow the issues, to lower the litigation costs, and to try and remedy the problem in ways that are completely ethical.  Yet, many litigators not only do not see the light, they are not looking for the switch.