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In a breach of employment agreement and non-compete case I was hired to defend a few years back, I had a very odd first phone conversation with my adversary. At the end of the call, I told him that I would be following up with a short e-mail memorializing our "pleasant conversation."

Here's where the call turned really awkward and uncomfortable:

Adversary: "Please don't include in the letter that our conversation was pleasant; I might want to forward it to my client, and I don't want them to know that our conversation was cordial."

Me: "Are you serious?"

Adversary: "Yes. Let's just keep it professional."


I admit, I was taken aback.

And even though this isn't the first time another lawyer has told me such a thing, it still bothers me.

Here's why:

I go out of my way to emphasize to my clients that I will always try to be as pleasant as possible, and to extend courtesies to my adversaries. And there is nothing "unprofessional" about it. To the contrary, as one of my colleagues recently put it: "You can disagree without being disagreeable."

Why Being Needlessly Confrontational Will Often (Read: Nearly Always) Work Against a Client's Best Interests

Quite frankly, I think attorneys who insist on maintaining that "litigation means war" or scorched earth policy do their clients a grave disservice. Here are but three (3) important reasons:

(1) by refusing to extend courtesies, the case will last longer, and prove more expensive for their clients, as they pursue needless fights over unimportant issues;

(2) by taking uncompromising and intractable positions, they may very well assure that either they or their client (or both) is viewed less favorably by the judge or jury; and,

(3) by refusing to work with the other side to the litigation, they are likely to alienate them, making it far more difficult, if not impossible to resolve the case short of a full-blown trial, which is often contrary to the client's best interests.

The Takeaway

The moral of this story should be clear. If you think you want "an animal" who knows only one way to litigate, and is hell-bent on the other side's destruction, stop and consider this:

Will he be working in your best interests?

Probably (almost certainly) not.

Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer
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