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Sunday, November 29, 2020

Should you Just Phone Your Opponent?

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Ah yes, the great joy of the litigator: writing unbelievably long-winded letters back and forth for months to set out why your client is right and their client is dumb.

It makes us feel good about ourselves, allows for a certain amount of chest-beating and fist pumping in the office as we click “send” on another series of threats to do things and claim costs for them. And let’s not mention how much time we can bill for it…

But what if a phone call just be a better option?

The Benefits of a Phone Call

Here’s the deal: 2 sensible, trusted advisors for their clients can achieve more in a 5 minute phone call than the 1.5 hours it takes to write letters, format them, get instructions, confirm things, review stuff, settle it and send it.

Why?

Because well-informed lawyers, not given to flights of fancy, can communicate well and frankly with each other. They know their clients and they know what they should or should not say. They can cut through the nonsense and deal with each other as human beings, rather than recipients of correspondence.

That is, after all, our job.

Unfortunately it can go very wrong.

Too Junior?

As you’d expect, very junior lawyers can be nervous about making phone calls to the lawyers on the other side.

It’s easy to get “verballed” or say something foolish. Of course if you’re too concerned about that happening then you might sound aloof and standoffish, or perhaps give the impression to the opposing lawyer that you don’t know what you’re doing.

Of course sometimes the opposite can occur – in an effort to show how great you are, bravado gets the best of you and you alienate any potential for future conversation with your counterpart. In my life I believe I’ve only hung up on another lawyer once – they fell into this category.

None of these things will be good – for you or for them.

The Dark Side of the Law

I hate to admit it, but some lawyers approach the practice of law differently from me (shocking, really).

These are the kinds of lawyers where something like this happens:

  • you have a conversation on the phone – it seems fine and dandy;
  • later you get an email “confirming” your conversation, in which they don’t accurately state what happened in your discussion;
  • perhaps they then swear to the conversation in affidavit, forcing you to check your notes (which hopefully exist) and swear your own affidavit in response;
  • distracting nonsense ensues.

Unfortunately, some lawyers are on the “do not call” list when it comes to litigation. The potential for things to get stupid are just too high, and you’re better of remaining in correspondence only.

That also applies to conversations outside Court, which many might think of as mere “banter”, but those of us who have been burned before know might end up in an affidavit later. Don’t risk it. Don’t make the call.

Of course, sometimes these people call you instead. You’ve got a few options here:

  • take the call, keep meticulous notes of the discussion;
  • don’t take the call – pretend it didn’t happen (not recommended btw);
  • don’t take the call, request all communications in writing.

This last sounds pretty grim I know, but sometimes unfortunately it’s needed.

But Otherwise…

Most lawyers are fairly normal people, wanting to do their best for their client.

A meaningful conversation has the potential propel your client’s dispute far more sensibly forward than constantly writing letters back and forth.

And while I know that our comfort zones are in writing and emails and non-direct communications, that doesn’t mean they’re always the right way to go.

So before you write your next instalment of Homer’s Odyssey consider this: just pick up the phone.

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