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Litigation Section Website › Newsletters › The Litigator, July 2010 › The Outgoing Chair’s Comments – A Final Word From Allison O. Van Laningham

The Outgoing Chair’s Comments – A Final Word From Allison O. Van Laningham

Being the Blue Interview Suit (Or Litigating Without The Distractions)

Article Date: Monday, July 19, 2010

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Van Laningham
There are probably as many litigation styles as there are litigators and no two styles are exactly the same. Over time, though, you see recurring elements. Some of them are good and admirable. Others, however, are irritating, annoying, and sometimes even destructive to the litigation process or, worse, the lawyers who employ or encounter them. Unfortunately, for each person who seeks to adopt good and admirable traits, others see the difficult lawyer in action and adopt those elements as part of their litigation styles – thus proliferating the species.      
The Blue Interview Suit
There are days when each of us leaves work feeling completely exhausted and depleted. Sometimes that is a result of a long and challenging day (or a series of them). Many times, though, it is not the substance of our work but the difficult lawyers we encounter who contribute most to our weariness.

On the other hand, we are all also fortunate enough to encounter (and hopefully be) lawyers who are courteous and professional. They advocate for their clients and the client’s position, but they do so in a way that is respectful. They recognize that it is much more effective to agree when possible throughout the litigation process. They focus on the important issues and are able to recognize the issues that are not that crucial. They can litigate without the distractions. They are the Blue Interview Suits.

Back in law school, everyone had one. It was the dark blue interview suit and it was standard stock-in-trade for on-campus interviews. It was classic, comfortable and, we hoped, made us look like lawyers. We wore that blue suit to keep our clothing from being a distraction. We wanted to be remembered for the substance of our presentation, not what we were wearing. 

Litigating our cases is not much different, except the potential distractions now are what we are doing (or not doing). Looking back on it, that blue suit (which, for purposes of this analogy is in no way boring) may allow us to recognize something that we never realized we knew in the first place-how to best serve our clients and litigate our cases.

Litigating Without Distraction
How do we eliminate the distractions in litigation? The truth is that we are not entirely in charge of the answer to that question-it is also affected by clients, opposing counsel, judges, and even court personnel. But, if each of us does our part, collectively we get to a better place in the world of litigation.

R-E-S-P-E-C-T.  Respect for each other and the process in which we are involved helps to minimize litigation distractions. Civility goes a long way. In addition to its positive effects with opposing counsel, it shows confidence in one’s litigation position. Perhaps we should imagine that each lawyer we encounter will be a judge one day or maybe in-house counsel at our best client-because some of them will be and we should treat each of them as if they might be. Issues may be difficult, and cases will have points of contention, but there is every reason to be civil to one another.

Communicate. There can be no basis for understanding unless we communicate. Too many times, we get in trouble because we assume that we know what the other side is doing or the particular motivation for an action. Much of the time, we are wrong about those assumptions. If we can really hear and understand the opposing lawyer and respond appropriately, we may be amazed at the progress that is made.

Resist the “Payback” Urge. While those who participate in bad behavior may eventually reap the bitter fruit of that labor, when we seek to bring about that result, we become part of the distraction.  When confronted with negative behavior, even the most professional litigator might be tempted to respond in like measure. Such responses, though, only hinder the process. The true test is to treat other litigators well, even when they do not deserve it. This does not mean that we trust the untrustworthy or that we let others use their tactics to harm us or our client’s position but it does mean that, as people, we treat them better than they may have treated us or others.

Reputation is Everything. Developing a good reputation in the legal community (local, state, national or beyond) is a hard thing to do. While good news is sometimes slow to spread, if we treat someone poorly or behave badly in court, that information spreads like a rampant virus. Not only does bad information spread quickly, it severely undercuts the good things that people may have heard about us. If each of us seeks to zealously guard our reputation and to think, with each action, how a behavior could affect that reputation, the result would be a better litigation process for everyone.

Eliminate Negative Emotions. The litigation process is not, by nature, emotional. Rather, it is a tool to reach a specific result-dispute resolution. The clients and lawyers involved in the process, however, can be quite emotional. To the extent we can keep emotions like anger and embarrassment out of our cases, the better the process can work. Once anger comes into the process, it may take a long time to get beyond it and back to a place where the parties can work together. Similarly, if we seek to embarrass the other lawyer in front of the court or his client, we likely have just introduced a major setback to the efficiency of the case. Emotions make the litigation process personal. If we can set them aside, we eliminate that distraction.

Focus on What is Important. The nature of litigation is, of course, that there is a dispute for which the parties need a process and a neutral to reach resolution. In every case, there will be major battles and minor skirmishes. Recognize the difference and focus on the major issues. If any tangential issue becomes a focal point in the litigation (even if for a short time), we should step back and ask ourselves how and why that happened. From the simple to the complex, we can make the choice to be obstreperous or as cooperative as possible. The process will continue either way but it will be more comfortable and satisfactory with cooperation.

Putting on the Suit
When we read it, this stuff seems pretty simple and straightforward. If we did not learn it in kindergarten, perhaps we were not paying attention. But one need look no further than the contents table of the latest professional publication to recognize that many of us are increasingly encountering incivility in our practices. Since we are, as a breed, a pretty competitive lot, some may respond to incivility with an “anything you can do, I can do better (or worse)” attitude. Of course, that exacerbates the problem and we hurt our cases, our clients, ourselves and the whole process.

Instead, we should focus on eliminating the distractions of tangential issues. We want to be to litigation what the blue interview suit is to interviewing. Both the interview process and the litigation process are tools. One helps employers find candidates and candidates find jobs; the other helps parties with a dispute find a resolution. For interviews, the blue interview suit kept a potential distraction out of the process. The goal was to provide an opportunity for the candidate and the employer to talk and potentially develop an employment relationship. Although necessary to that process, the attire should not be the focus.

By the same token, in the litigation process, the focus is to reach resolution of a dispute. To maintain that focus, we have to eliminate the issues that could be distractions – uncivil behavior, fighting about every issue – making it about the lawyers instead of about the case. In short, we have to be the blue interview suit. If adopted as the standard uniform for our profession, we will find that it is classic, fits well, and makes the process more comfortable and workable for everyone.
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