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The Right Call is Often Not Clear

A lawyer friend called me recently. He needed a continuance, but his opposing counsel would not agree. My friend was not happy.

The rationale for a continuance was not unreasonable. It was not something super compelling, however. The case had been around a long time, so I could see how it would be sticky for defense counsel to agree. I would also guess that the other side suspected that the plaintiff might not be able to try the matter at all if held to the scheduled trial date. I don't think that is the situation, but I probably would have had the same suspicion.

My discussion made me think about when you should accommodate the other side and when you have to say no.

Illness, family deaths or other disasters are easy. No reasonable lawyer should oppose relief in such a circumstance. Almost all courts would grant it anyway - and you'd end up looking like a major jerk.

At the other end of the spectrum are situations where the other side has just not done what they should have done and now wants to be bailed out. You can't agree to delay the resolution of a client's matter just because the other side didn't do their job.

As we all know, the large majority of situations fall between those two poles. The right call is often not clear at all.

Of course, the interests of your client are paramount, but even that gets murky quickly. For example, if a court is likely (but not certain) to agree with the other side, are you helping your client by objecting anyway? Picking needless fights hurts your credibility and burns goodwill, which by extension is not good for your client. On the other hand, you must consider the particular substantive position of that client, as well as their attitude and inclinations. You have to consider the peculiarities of your venue - and all courts have a distinct culture.

Trial lawyers constantly face such questions. It goes with the territory, for better or worse.

You learn quickly to assess the competing influences and make a decision.

The reality is that you sometimes end up making the wrong call. That also goes with the territory.

There is a joke about the standard lawyer response to almost any question being "it depends." Well, there is truth in humor: It really does depend.

In the end, I was not able to give my friend much helpful advice. If you seek my counsel, I will tell you what I think. In this instance, I couldn't say the other side was being unreasonable. Hence, I couldn't even provide much sympathy for his dilemma.

Being a trial lawyer too, my friend understood - just as I expected he would.


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