by Kelly B. Mathis,
Gobleman, Love,
Gavin, Blazs & Mathis
Members of The Jacksonville Bar Association have long delighted in the opportunity to distinguish ourselves from attorneys in South Florida. Indeed, we have always had a certain amount of pride to explain that we did not practice law the same way that those lawyers do. Ours is the practice of law as a noble profession marked by cordiality and civility. We understand when we need to take a position where we need to agree to disagree but rarely make opposing counsel jump through hoops that we create just for the notion of “exercise does a body good.”
Some would say, however, that the rapid expansion in the number of attorneys in the Northeast Florida area together with the pressures of the practice and client expectations has resulted in a tendency of our bar to deviate from these ideals. If this is true, this should be a wake up call to our members. Do we really want to travel that road?
The problem with needless aggressive lawyering is analogous to the historical principles of war. Once the first strike is made the conflict escalates more readily than it is defused. A lack of courtesy displayed by opposing counsel almost inevitably leads to an unwillingness to offer a professional courtesy from the other. A tersely worded faxed letter leads to a tersely worded response. A burdensome set of interrogatories is often followed by an equally burdensome set of interrogatories from the opposing attorney.
If we are to maintain the dignity and standards in our practice in Jacksonville we must recognize our conduct and be willing to take the necessary effort ourselves to make sure we do not veer off path. In so doing I believe that the very first thing that we need to address is how we interact with each other. This not only affects our ability to serve our clients more effectively and cost efficiently, it affects our own stress level, enjoyment of the practice of our profession and the publicís perception of our profession. When we remain cordial and professional we avoid a battle of the faxes of tersely worded jabs, the necessity to respond to “confirming” letters that have an improper spin and avoid court hearings over insignificant issues.
When I was a very young lawyer a client had consulted me regarding something outside of my field (which was just about everything). At a loss to provide the client with even the most basic direction, I placed a phone call to Bill Sheppard. At the time, Sheppard did not know me from John Smith (and probably still doesn’t). He was in trial and I left a message. Sheppard returned my call that same evening and willingly provided some basic advice that I could impart to the client. When I expressed gratitude and surprise that Sheppard had taken his time to promptly return the call of an attorney he did not know while he was in the midst of a trial he imparted words of wisdom that I won’t forget. Sheppard told me that when lawyers cannot communicate and do not take the time to communicate with each other the system falls apart. I still do not think that he was not making an overstatement.
You need to ask yourself whether you believe this is true. If so, are you putting your beliefs into practice? Remember that the younger lawyers, and the future of our profession, will imitate you. Are you guiding them down the path of civility and professionalism or teaching them that an end result, which you believe is preferable, justifies the means? Which path do you propose that future lawyers in Jacksonville take?
Not too long after that conversation with Sheppard, I became involved in a relatively small case involving an insurance coverage dispute. The case became contentious and a battle of the faxes soon erupted. The faxes that I was receiving from opposing counsel became more terse and more demanding. I was even more surprised because they were coming from a well respected member of the Bar. After one particular fax I immediately called the attorney on the phone and merely asked him if he was in his office. I told him I was coming right over and wanted to speak with him. When I questioned what was happening the lawyer at first informed me that he was very busy and that it was simply easier for him to dictate a fax letter than to pick up the telephone and call me. After talking it through we realized that a simple phone call could have avoided a lot of misunderstanding and saved each of us from engaging in a fax war. We never had that problem again.
Several years ago I was involved in a very heated deposition with another lawyer. Things were said by both of us that we later regretted. I am pleased to say that both of us made an effort to defuse the matter shortly thereafter before the litigation proceeded further. Throughout the rest of the case we were cordial and professional. By the time of trial we had become downright friendly toward each other. In fact, during trial the other attorney invited me to have lunch with him and his family. I graciously accepted. We have remained friends since.
The real issue is not whether you will be confronted with less than ideal situations involving opposing counsel. The question is how you will handle it when you do.