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Treat Opposing Counsel as You Would Want Them to Treat You

Scheduling hearings and depositions is often a huge pain.

Having been both a defense lawyer and now a plaintiffs' lawyer, I have a broad perspective on this issue - and related ones.

More often than not, the problem is with the defense.

The difficulties derive from a simple economic reality: If a defense lawyer isn't over booked, he or she is probably not doing well. You can make money at insurance company hourly rates - been there, done that - but you have to be busy. Actually, you need to be a bit too busy. An open calendar is a scary thing on that side of the V - again, been there and done that. If you're a defense lawyer, that's just the business model in which you exist.

In theory, the added manpower at defense firms means there should be adequate coverage.

But no, reality is different. Insurance companies and/or corporate defendants often insist that lead counsel cover certain events, such as the doctor's deposition. There are also some defense lawyers who are just control fanatics and/or others who are disinclined to share their work, even with their partners. (Oh yeah, that's an ugly world, at least in Virginia.)

So, we end up with ridiculous situations where defense counsel wants to schedule something but only offer a couple of dates within their desired timeframe. When those are unavailable with us and we suggest later dates, opposing counsel gets unhappy because of the "undue delay."

Those exchanges get testy and self-righteous, often rather quickly.

I find this sort of nonsense very tiresome.

I have no nifty solution to offer. I can only go back to one of my common refrains on this platform: Reasonableness begets reasonableness.

Making an unreasonable demand, such as insisting that a deposition needs to be taken within a month but then only offering two possible dates, is nothing but a recipe for a fight - and a pointless fight at that.

If your calendar is full, you can't be mad when the other side can't adjust to your schedule.

I will now say something that will draw flak from defense lawyers: If your schedule is so full that you are constantly having these sorts of problems, you need to pass stuff on to your colleagues. If the insurance company pushes back - and that is not unlikely - you might have to stand up to them. If you simply don't trust your partners to handle your clients, that's a different and uglier situation all together.

Bottom line: Treat opposing counsel as you would want them to treat you.

We all have a job to do and it is not always an easy one. Let's not make it harder than it has to be. Just start with the premise that if you're reasonable, you're opposing counsel is likely to respond reasonably.

Does it always work?

Of course not, but more often than not it does.


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