The Advocate, Journal of the Nevada Trial Lawyer’s Assoc., April 2007 issue.

Last week, I spent a good portion of my morning in the Discovery Commissioner’s courtroom.  Although the new Discovery Commissioner, Bonnie Bulla, was doing a fine job and admonished the various participants not to make personal attacks on one another, time after time, the various attorneys who argued their matters took shots at one another.  A lot of it sounded like school children “telling” on each other to “teacher.”  The common theme was: “My opponent hasn’t done anything for months, yet, I have toiled without cease.  Show him no mercy!”   Then, the other attorney has to decide between either groveling for mercy,  or going with  “the best defense is a good offense” strategy and start shouting.

     As I listened to this, I reflected on the fact that many years ago, I got into a lot more of these sorts of squabbles with other lawyers than I do now.  I wondered why it is that, although I still get into scraps from time to time, there are many fewer of them now.  I suppose some of it just has to do with being older and having a broader perspective on things, but some of it has to do with learning a few lessons “the hard way.”  Here, then, are four practical measures that you can adopt to help you avoid getting into a “na-na-na-na-naw-naw” argument before the Discovery Commissioner or judge.

     1. Tell your paralegals and legal secretaries that if there is going to be any unpleasant communication with opposing counsel, you will be the one doing it.  Fforbid your paralegals and secretaries from sending their own threatening or unpleasant letters.  It has been my experience over the years that the most sarcastic and  provocative letters I receive from opposing law firms are typically not written by the attorneys, but rather by paralegals and “legal assistants.”  Sometimes when I receive a particularly nasty letter from another attorney, when I call the other attorney, I’ll find out that his paralegal wrote the letter, and he just signed it without really paying much attention to what it said.   When it comes to “good cop/bad cop,” you, not your paralegal, must take the “bad cop” role exclusively. 
 
     2. If you write an angry or provocative letter, let it sit in your “in box” for at least 24 hours before you send it out.  A corollary to this rule is to never send angry messages via e-mail,  where,  once you press the “send” button, there is no taking it back.  I have often found that if I let letters sit in my “in box” for 24 hours, when I go back to them, I will red pencil about half of the verbiage.
 
     3. Revise your form letters.  Many of us have forms that we developed years ago or copied from someone else, that have phrases that translate roughly : “I am demanding that you answer my interrogatories within 72 hours, or else may God have mercy on your soul.”  It’s good to have form letters, but you don’t need to have forms that make other people angry when you send them out.  This is especially true for form letters that you are letting paralegals send out without your actually signing them.  Unfortunately, I have to admit that I have had  more than a few of these form letters; I only recently went through and re-wrote many of them.  Some of them, which I wrote twenty years ago, are embarrassing in their tone when I read them now.
 
     4. Quit trying to set people up.   May I make a suggestion:   instead of trying to “set up” opposing counsel to blow deadlines, why not write them a friendly note asking them if they are intending to do this or that discovery, if they want to meet to set up a deposition schedule, etc.?  If you go about it in a truly congenial way, then, if the other person still blows off the deadlines and ignores you, I would say that you stand a better  chance of a judge or Discovery Commissioner being more sympathetic to your side, as opposed to where it looks as though you were trying to “set up” the other person . 
 
     I know this will sound like ruminations of a cranky old lawyer, but I remember how it was 25 years ago, when Las Vegas only had a total of six or seven hundred lawyers, including the criminal bar.  Back then, you could actually call someone on the phone and work things out; people weren’t busy having their paralegals fax “set up letters” back and forth.  We used to talk in those days about how the lawyers in Southern California practiced law by trying to “trick” one another or set each other up, and how it was so much better in Las Vegas as compared to that.  Now, I hear lawyers who move here from Southern California remark  how the practice of law in Las Vegas is improving, because it is becoming more like Southern California.   This is unfortunate.