This is the second blog post following yesterday associated with the issue of dealing with lawyers and how their business practices can impact the outcome of a case.
For many firms, their work product is subpar, their ethics are astringent, and their preparation non-existent. But, for all their warts and limitations, they have focused their energy on the true, fundamental nature of defending a lawsuit. No, it does not relate to complex interpretations of jurisprudential ether, or strategic development of jury selection, or even interpersonal relationships with the judge. Instead, they've figured one thing will always serve them well...
Phone calls? Don't return 'em. Emails? My computer has been down. Letters? None in my file. In sum, it's the "art of the stall."
Here's a sequence I am enduring by one of my defense colleagues. In advance of filing suit, I provided a copy of our lawsuit to his office (by fax), as well as by letter (certified mail), and by an email (receipt obtained). I suggested that due to the nature of the dispute, this would be a case for early assessment and potentially an expedited mediation. I shared these ideas with my client who found them encouraging. I also copied them on all of these communications who later confirmed receipt of it all.
I heard nothing, and after the proscribed time, sent the suit to be served. Upon receipt of the lawsuit, I received a phone call, asking why I had not simply called them to discuss a case like this where early resolution was possible. I described what I had done (fax, email, and letter), "no, never got them." "Do you think we can get an extension to discuss with our client?" The standard courtesy being yes, I obliged, but confirmed in writing a specific deadline (by fax, with confirmation). Of course, the date came and went, as did the date the suit was now to be answered. We sent a letter, telling them they were now in default (by fax, confirmed, and email). No answer. OK, we filed a motion for default (by fax).
I receive, the day before the date of the hearing on the default, a 6-page memo in opposition, where it is noted that the parties had voluntarily agreed to stay the lawsuit until it would appear no resolution could be reached. No mention of my copious letters. No way I was going to front of the Court on this, as I knew we'd both be blamed like warring teenagers. So, I called and he did take the call. We agreed I'd withdraw the motion for default and he would answer. Yes, this time, he filed his answer, but again suggested we stay the matter until they could evaluate it. Fearing my client's wrath, no, I said, it's time to litigate. They did ask for mediation and we agreed to voluntarily attend.
You know how the mediation went, as they offered us approximately 20 percent of what the case was worth. Now my client is really pissed, and in part, at me, for believing this would be worthwhile. However, they got the mediator to agree to "extend" the mediation so that we could make continued efforts to resolve the case. No, I said, but the mediator ordered it. "Why can't you all get along?" he asked. Eh hmmm.
You know how the 10 days went, that being nowhere. We heard nothing, and the mediator told the court no settlement. Upon receipt of the mediator's notice of impasse, I get a call from the lawyer. After hearing him whine about how unreasonable my client is, to which I laughed, I told him we were going to be taking all of our depositions in the next several weeks. And we did just that, completing all of our discovery, weeks ahead of schedule, and prepared to attend a conference where the court would set it for trial.
The Court asked, "are you ready for trial?" "No, said the defense lawyer, we have been unable to complete our discovery due to the lack of response we have been getting from the opposing attorney." The Court then said that he was tired of hearing about cat fights between lawyers and wondered why we all just can't suck it up and get along. My clients were furious and I needed a drink.
See the point: most of these defense attorneys ignore the substantive issue and just simply wait you out. And, boy, are they good at it. But in the end, we will win, and boy, will they pay.