A Call for Face-to-Face Communication in Litigation
Victoria Pynchon posted an article she wrote (not sure where it was published) at her IP ADR Blog -- click here for the post and the article. Pynchon argued that the common practice of communicating with opposing counsel largely by email, except during depositions or hearings, tends to increase animosity and conflict of a litigation. In the asocial world of email we tend to write more aggressively and we tend to read more aggression into emails we receive. Pynchon supports these theories with studies, but I suspect most litigators are aware of the email aggression problem from practice.
It is no surprise that increased aggression in a naturally aggressive proceeding has negative consequences. For example, parties that often meet for the first time at a mediation or settlement conference arrive not trusting or respecting each other, making resolution much more difficult. Pynchon suggested a somewhat radical solution to the email problem -- live meetings with opposing counsel. She suggested that you routinely have live meetings with opposing counsel throughout the course of a litigation, including perhaps even doing some meetings over a meal. The face-to-face contact would generate the trust and respect needed to resolve issues that always arise during a litigation. I have always advocated live meetings with co-counsel in a multi-party litigation. Email communications (or even conference calls) tend to get out of hand and the parties tend not to pay enough attention to others' positions. I am going to expand that practice to opposing counsel.
One other thought, that I do not know if Pynchon will agree with. Those who still avoid email and continue using letters as a main communication means are not off the hook. I started practicing when letters, not emails, were how you communicated with opposing counsel. Those letters tended to be far more aggressive than the attorneys were in a live conversation. And I suspect people tended to read extra aggression into the letters they received. I do not know if aggression is stronger in emails than letters, but the same problem exists whether you hit send, hit print or use a pen to write to opposing counsel.
It is no surprise that increased aggression in a naturally aggressive proceeding has negative consequences. For example, parties that often meet for the first time at a mediation or settlement conference arrive not trusting or respecting each other, making resolution much more difficult. Pynchon suggested a somewhat radical solution to the email problem -- live meetings with opposing counsel. She suggested that you routinely have live meetings with opposing counsel throughout the course of a litigation, including perhaps even doing some meetings over a meal. The face-to-face contact would generate the trust and respect needed to resolve issues that always arise during a litigation. I have always advocated live meetings with co-counsel in a multi-party litigation. Email communications (or even conference calls) tend to get out of hand and the parties tend not to pay enough attention to others' positions. I am going to expand that practice to opposing counsel.
One other thought, that I do not know if Pynchon will agree with. Those who still avoid email and continue using letters as a main communication means are not off the hook. I started practicing when letters, not emails, were how you communicated with opposing counsel. Those letters tended to be far more aggressive than the attorneys were in a live conversation. And I suspect people tended to read extra aggression into the letters they received. I do not know if aggression is stronger in emails than letters, but the same problem exists whether you hit send, hit print or use a pen to write to opposing counsel.
Thanks for picking this up David. (it was published in the Los Angeles Daily Journal -- the local legal newspaper).
I'm pleased to say that after the piece was published, a local attorney wrote me with the following story. He was just about to send a well-crafted aggressive email response to a settlement offer. He read my article and realized he was writing the email for his client's benefit, not for the benefit of opposing counsel.
So he picked up the telephone, called opposing counsel, told him why he was sending the email and THEN hit 'send.'
There is one more step in this process, however. When we rile our clients up like this (who BELIEVE our posturing) we make settlement more difficult for them and make our own task of helping them "understand reality" much more difficult. At settlement conferences I'm sometimes told by the client that they feel their attorney has suddenly become the "enemy" or is "betraying" them. That's how dramatic the shift from fierce advocate to reasonable business advisor seems to clients.
I believe we do ourselves AND our clients a disservice by taking these overly aggressive postures.(and you're correct, we'd rarely say these things in person and it doesn't matter if we're writing an old fashioned letter or an instantaneous email).
Food, by the way, is a negotiator's secret weapon. "Breaking bread" together is an ancient means of resolving dispute. The brain scientists now tell us why -- it triggers the release of "feel good" neurochemicals.
Thanks for your excellent and consistent blogging on issues my lawyer clients need me to stay up to date on. I'm a big fan.