American Bar Association 4 t h Annual Section of
Labor and Employment Conference
Employee and Employer Counsel Share
the Things that Opposing Counsel Do to
Make Their Jobs Easier
Presented by:
Lawrence Ashe
ASHE, RAFUSE &HILL
Kelly M. Dermody
LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP
Lynne C. Hermle
ORRICK, HERRINGTON & SUTCLIFFE LLP
William A. Widmer, III
CARMELL CHARONE WIDMER MOSS & BARR
HOW TO GET ALONG WITH OPPOSING COUNSEL AND MAKE LIFE
EASIER FOR BOTH OF YOU
1. Readily grant reasonable requests for extensions and other courtesies to opposing
counsel and clients. Don’t demand a quid pro quo for every request.
2. Don’t misrepresent facts, even by omission.
3. Don’t cause unnecessary work, such as be refusing easy stipulations, filing
motions with little or no chance of success, or by refusing appropriate discovery.
4. Explore early resolution whether by mediation or direct negotiation.
5. Don’t make coaching objections in depositions.
6. Don’t try the case in the media.
7. Don’t file needlessly inflammatory pleadings.
8. Don’t make sanctions motions unless clearly meritorious.
9. Don’t gratuitously accuse your adversary of bad faith, fraud, etc.
10. Take your adversary to lunch or dinner!
Making Your Job Easier
An “Oprahesque exchange” is not the stuff from which scholarly papers spring,
but a writing is required so …. One should never lose their firm grasp of the obvious –
the purpose of the exercise is to secure the best outcome available for the client.
Consequently, are “slash and burn” tactics in discovery really in the client’s interest,
particularly if the best outcome available is a settlement? Similarly, if you believe
summary judgment for your client is realistic, what impression are your tactics leaving
with the judge? Despite what you may have heard, judges, and their law clerks, are
human. The paper trail, and multiple trips to court created by your tactical choices, make
an impression which in all likelihood will impact the assessment of your legal arguments,
because in law, as in the search for WMD, there are no slam dunks.
William A. Widmer, III
Kelly M. Dermody
Lieff, Cabraser, Heimann & Bernstein, LLP
Paper for the ABA LELS Annual Conference
November 2010
Things That Opposing Counsel Do To Make Everyone’s Jobs Easier
1.
Accommodate scheduling issues. Litigation is the start of a forced
marriage between counsel for each of the parties. You are going to be dealing with each
other a lot, possibly for many years, and you should try to keep your gladiator in check
and stay human with each other. In virtually every case lawyers need extensions –
sometimes it’s because of anticipated delays, other times it’s for unforeseen problems.
And sometimes, it’s just because the opposing counsel need a weekend with their family.
In most instances, reasonable extensions should be accommodated, especially for
opposing counsel’s personal matters.
2.
Negotiate reasonably and do your homework first. I get a pretty good
sense of how the litigation is going to go in the first document meet and confer. During
this meeting I am generally always told that my clients are wrong and that they are not
entitled to all variety of documents. I could give this speech in my sleep. What
impresses me is when opposing counsel comes well prepared to negotiate the requests
based on actual knowledge of the documents at issue and a willingness to explore costeffective techniques to winnow categories of documents that are legitimately unhelpful or
not as helpful as other alternatives. For example, my clients frequently seek reports on
various matters not knowing the volume or the exact content of any given inventory of
reports. With the best defense counsel, they move past form objections and suggest that
we review exemplars to make certain that the documents are truly relevant to the case.
Sometimes they suggest we accept a more limited production of documents that reflect
information that would be replicated elsewhere but which they convince us we will not
need. Sometimes they produce documents immediately, before a document request is
even served, to start a dialogue regarding how our client was confused or wrong about the
facts at issue. This can lead to a very early settlement or dismissal of some claims.
But not every opposing counsel is prepared to negotiate or capable of negotiating
documents, even years into the litigation. Those lawyers refuse to produce anything,
claim burden without any knowledge of the universe at issue, and/or almost seem
deliberately opaque when we suggest cost-effective strategies to secure certain
information. That dynamic, of course, results in motion practice, expense, delay, friction,
and ultimately more motion practice.
3.
Consider the end game. The very best opposing counsel do this a lot.
Often they engage me in a discussion early in the case about expediting formal or
informal discovery to see if the parties can evaluate their settlement positions before a
variety of case investments are even made. Sometimes they do it in the midst of
discovery after certain information critical to liability or damages has been produced and
analyzed. They may reach out again before class certification, or summary judgment, or
trial, purely because both parties have a lot to lose at those junctures and talking can be
productive with that much mutually at stake. In running my own cases, I try to do the
same thing. Thus, it is not uncommon for me to make the first settlement overture, or the
2d, or all of them, and it is likewise not uncommon for the opposite to happen. I do not
attribute weakness to which side initiates, as I do not make overtures solely if I think I am
going to lose, and I do not think defense counsel do so either.
4.
Recognize your opponent’s “must-have” goals: Unless you want the other
side to dig in with no hope of reasonable negotiation, listen carefully for insights into
your opponent’s “must-have” goals. Sometimes the very best lawyering we do is when
we figure out a way to be flexible so that each side’s goals that aren’t mutually exclusive
can be mutually accommodated. For example, sometimes my clients’ most fervent desire
is that certain “unfair” selection systems will be changed, and the company’s “musthave” goal is that it not lose its competitive edge. Fortunately, both employee and
employer share an interest in company profitability because a company that is doing well
tends to have more upside opportunity for its employees. Thus, to reach a place where
both goals are accommodated, the parties must identify appropriate systems that assist the
company in selecting the right people, with the fair and proper criteria, and retaining
them once hired. Better for the employee, better for the bottom line. Win-win.
5.
Be nice to the opposing party. This should be a matter of basic manners,
if not professionalism, but it is rare that defense counsel are courteous to my clients. The
worst of this behavior happens in depositions. The result is that my clients, who
originally filed their lawsuits to seek “justice,” devolve into wanting vengeance. This
makes litigation unpleasant for everyone and settlement so much harder.
TEN SUGGESTIONS FROM DEFENSE COUNSEL FOR INCREASING THE
LIKLIHOOD OF SETTLEMENT OF EMPLOYMENT CLAIMS
Lynne Hermle
Orrick, Silicon Valley
1. Consider the proper venue for your most vigorous attacks on the conduct of
the defendant. In other words, recognize the human aspects of the settlement
process (even if you believe that by definition, corporate defendants have no
heart/soul/feelings). The response to attacks in-house counsel consider to be
inaccurate or unwarranted play a much greater role in obtaining settlement
authority, or willingness to use all of the authority we have, than you probably
think. The proper venue for a full-fledged attack is in the mediation or
settlement briefs, or in a separate session with the mediator (assuming that
performance will not impact your client's ability to consider settlement
objectively). It does not serve any purpose to aggressively attack or insult in a
joint session or face-to-face meeting, and it is a mistake to underestimate how the
resulting anger and offense may impact the settlement negotiations. I will
always be offended by what I believe to be personal attacks on my clients (or, for
that matter, my associates). And don't underestimate how a placatory offering
might help in bridging some resistance to your demands. Similarly, if you are
representing a long-term employee who was (and maybe is, in the employee's
view) loyal to the company, stress that contribution.
Unhelpful: "Any jury will agree with me that the company engaged not only in
discrimination but also in sneaky, underhanded tactics and I know that punitive
damages will be awarded to punish…..
Alternative: "I understand that the company believes it acted correctly. But from
our point of view, the way that this termination occurred created significant
liability in the views of a jury of employees. We believe that a jury will have
sympathy for our client, although we recognize that there may be some
mitigation issues..."
Unhelpful: "There is no way the defendant will succeed on that summary
judgment argument, it is the stupidest thing we've ever heard…"
Alternative: "We understand your views on the summary judgment theories.
But this judge has indicated in similar cases that he finds like theories to be
persuasive at the summary judgment stage…."
2. Don't inflate your client's settlement expectations, including by providing him
or her with a copy of a mediation or settlement brief which contains an inflated
calculation of damages. If you do send a copy of the brief, take pains to explain
why the numbers are provided as advocacy and are not likely realistic as a final
outcome.
3. Explain how contingency fees and taxes work prior to the mediation or
settlement proceedings, and remind your client during the mediation. It is not
helpful for anyone when your client assumes all of the money offered will be a
take-home amount.
4. Don't overreach on fees in early settlement proceedings. When the mediator
tells us that we can't settle because your 30% fee demand leaves the plaintiff with
insufficient money—in a case that has quickly moved to mediation so that
extensive fees have not accrued—all of those present on the defense side have an
instinctive resistance to provide a such a windfall at the company's expense. If
you haven't earned a large fee and it’s holding up the settlement that you want,
cut your fees.
5. If there is a sticking point on a smaller issue—maybe your demand for
outplacement benefits, a reference letter, an agreement not to fight
unemployment, etc—and you have decent interpersonal skills and patience at
that point, consider coming in to the defense room to explain why it is important
to your client. It may be that the mediator is not able to explain it in as
convincing or personal a manner.
6. Recognize that confidentiality provisions are typically essential to the
settlement. If you refuse to accept a provision with a limited liquidated damages
or similar protections, you will likely torpedo your settlement. If you are afraid
that the employer will allege violations capriciously, ask for a term providing for
an award of attorneys' fees to the prevailing party in a dispute over
confidentiality.
7. The existence of a professional, courteous relationship in the settlement
discussions (when appropriate) never hurt anyone. I recently had two very
different mediations. One was preceded by very aggressive mediation briefs, but
a pleasant set of introductions and a presentation that, while aggressive,
acknowledged the issues in the plaintiff's case and urged the employer to assist a
long-term employee who was now on hard times by resolving the case. The
other involved a plaintiff's counsel I had met and liked on earlier occasions, but
who took an extremely harsh, accusatory and unpleasant approach in the
mediation. One settled. One didn't. Guess which. And on top of all that, many
plaintiffs' lawyers would be shocked to learn what an excellent source of
referrals we are, including for very high value claims at the executive level. (By
the way, referral thank yous don't hurt either.)
8. Extending a courtesy, especially when you don't need to do so, can go a long
way in establishing a relationship which is in your clients' interest, and yours
too. I remember a particularly horrific week in which I was faced with the
unexpected death of my father in law, the shocking passing of my employment
partner Stuart Bompey, and, believe it or not, the death of the brother of my trial
co-counsel. My opposing counsel not only agreed not to oppose a trial
postponement (I could barely get out of bed at that point), but was sympathetic
and helpful. I've sent dozens of referrals ever since.
9. Come prepared to stay the course while we finalize a written agreement. It
saves days of discussion later. And if there are likely to be essential terms that
are not standard, let us know in advance.
10. Think carefully about how best to position your demand at mediation or in
settlement discussions. Don't inflate it beyond the numbers you suggested when
agreeing to mediate—that is likely to put brakes on the proceedings. As
important, don't put in all the stuff you claim you will get three or four years
down the road if you actually make it to trial and win (prejudgment interest,
penalties, punitive damages, etc.) The whole point of the discussion is that we
are each trying to work towards a number that represents a reasonable
compromise by each of us, and in most cases, these things simply don't fall into
that category. Calculate what you believe your client's damages to be, and then
compromise them reasonably. You'll get a better response to that than if you
throw in the kitchen sink and then drop quickly.