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My colleague passed along a copy of this fantastic note which has a “citizen of earth” chasing off the parking police on behalf of a stranger, all in the interests of good karma.
Last week, one of my partners wrote about a successful negotiation that she was involved in on behalf of one of her employee clients and all of the things that made it a pleasant experience for her, resulting in a good outcome for her client. This morning, I had the opposite experience in an encounter with opposing counsel on a file, and when I saw this note, it got me thinking about karma and why my exchange with counsel was so unpleasant.
I knew this was going to be a difficult file. Our client had fired an employee for cause and the facts, as they described them leading up to the termination, were diametrically opposed to the facts that were set out in the “demand letter” that our client received from the employee’s counsel. Instead of spending a lot of the client’s money preparing a response to the lengthy letter, I decided instead to give opposing counsel a call and see if we might be able to try and resolve things.
To their credit, counsel allowed me to review the facts on the phone as our client saw them, and they acknowledged that we had a problem because our clients had such different views about what had occurred between them. However, counsel then went on to accuse our client of game playing and inappropriate behaviour in the way they had handled themselves following their receipt of the demand letter. In my conversation with our client, they had provided legitimate explanations for their behaviour, all of which I could have, and tried to explain. So, to me it appeared that counsel’s accusations were without foundation and, in my view, unnecessarily confrontational. The conversation continued to deteriorate and did not end particularly well.
I have had many difficult files with opposing counsel and I have had tough negotiations with members of the bar where we’re tough on the facts but not tough on each other. I had not dealt with this lawyer before and part of my reason for reaching out to them instead of writing a letter was to try and establish a professional working relationship at the outset of the file. Instead, I walked away from the discussion with a very negative feeling.
How could things have gone differently? I know that I make it a point never to accuse opposing counsel or their clients of misconduct, whether it be game playing or inappropriate behaviour. This is because there are two versions to every dispute and I wasn’t there, so I will never know what really happened. If I feel that how the other side has behaved looks bad, or if my client has told me that this is how they have perceived the behaviour of the other side, I won’t hesitate to share this with opposing counsel, but I don’t become invested in this narrative – it’s not my dispute. So, I might say something like, “I hope that you can understand that my client has viewed what has occurred here as your client playing games. Whether that’s true or not, it’s what my client feels and, as their counsel, that’s the challenge I’m facing in trying to reconcile what you’re telling me.” For me, this sets the tone for a highly professional and constructive interaction with opposing counsel. I don’t mind being told what our case looks like from the other side, but I don’t think it’s productive to accuse anyone of wrongdoing, especially when none of us lawyers really knows what happened.
So what about me? I have to admit that I was not my best self on this call. I allowed myself to get caught up in the rising temperature of the discussion and I’m not proud of it. But it’s a reminder for me that this all comes back to karma. Ideally, we’d all have long legal careers and wouldn’t it be nice if we could all have interactions with other lawyers which we find to be pleasant and professional? We can all be firm in our positions and strong in our advocacy, but I see no reason why we can’t, at the same time, be nice to each other. So, I know that I can’t change the behaviour of others but I’m going to keep on trying to tap into that good karma, and hopefully what goes around comes around.