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Playing nice with opposing counsel

Last week, opposing counsel and I went back and forth regarding a discovery dispute about a document that I believed was subject to discovery and should have been produced. I drafted a “good faith” letter, drafted a subpoena to a third party and spent several hours researching the issue.

But counsel and I also scheduled a conference call to discuss the dispute. Within minutes, we were able to strike a compromise and the letter, subpoena and research were no longer necessary.

I learned a valuable lesson — play nice and try to work it out. Despite what people often think of lawyers, most of us are reasonable and want to avoid spending countless hours fighting over something that can be resolved.

Even if the issue ultimately is not resolved, it may establish some goodwill between the parties that at least an attempt was made to work it out.


  1. I agree with you but also believe that the requirement that attorneys make extensive efforts to work things out has led to an increase in discovery abuses. Here’s how. An attorney propounding discovery knows that opposing counsel must work to resolve any objections to that discovery, no matter how objectionable or improper. I believe that this leads some attorneys to draft objectionable discovery and force opposing counsel to spend a tremendous amount of time writing letters and trying to negotiate a resolution. The propounding attorney may, after many weeks and a lot of heartache, finally agree to back off some of the objectionable requests. The same goes with counsel responding to discovery, who may be tempted to provide less than complete answers and then wait to see how far opposing counsel pushes back. Only after a motion to compel seems imminent will some half-hearted supplemental answers arrive. Counsel who use these tactics also understand that judges hate discovery motions, which gives them even less motivation to fully cooperate until a motion is filed. And in federal court, I’ve even seen attorneys who are on the receiving end of a proper and justified motion to compel, wait to resolve their discovery deficiencies only after the motion is fully briefed. They report this to the court, leaving the moving party – who has wasted a tremendous amount of time and expense – in the awkward position of demanding that a motions hearing proceed solely on a request for sanctions (which judges probably despise even more). So, although a lot of good can come from requiring attorneys to try to resolve their discovery disputes without resort to the court, this system has also invited some attorneys to work the system to play a cat-&-mouse discovery game that has very little downside risk.

  2. Wow, this is amazing insight. I never would have thought of trying to work something out with opposing counsel before launching into a nasty in-court battle.