Earlier in my legal career, a mentor gave me a piece of advice about dealing with opposing counsel that has stuck with me over the years. He told me that whenever another lawyer asked for a favor, I should try to get something in return. Whether opposing counsel wanted me to accept service, consent to an extension, or provide some other professional courtesy, my mentor believed that I should use the opportunity to obtain a concession of my own. In his view, good lawyers should never give something away for free when they might be able to extract something of value in exchange.
There is certainly some logic to this advice. Lawyers are supposed to advocate zealously for their clients, and litigation often involves negotiations in which concessions are exchanged. If opposing counsel needs an accommodation, it might seem reasonable to use that opportunity to advance a client’s interests. Indeed, there are situations in which lawyers should negotiate over procedural accommodations, particularly when granting a request might prejudice a client or affect the litigation in some meaningful way. However, I have come to believe that lawyers who insist on receiving something in exchange for every professional courtesy are taking an unnecessarily transactional approach to practicing law.
For one thing, such an approach can make lawyers seem somewhat inhuman. Attorneys are people, and sometimes they need accommodations because of personal or professional circumstances beyond their control. A lawyer might request an extension because of a family emergency, an unexpected illness, or simply because other professional obligations have made it difficult to meet a deadline. Responding to such a request by immediately demanding something in exchange can seem petty, especially when granting the accommodation would cause little or no inconvenience. Lawyers should be able to recognize when another attorney simply needs a helping hand without turning the situation into a negotiation.
Moreover, the legal profession is a relatively small community, and reputation matters tremendously. Lawyers often encounter the same attorneys repeatedly throughout their careers, especially if they practice in a particular geographic area or concentrate on a specific type of litigation. An attorney who develops a reputation for being reasonable, cooperative, and professional may find that other lawyers are more willing to extend courtesies when the situation is reversed. Conversely, attorneys who demand concessions for every minor accommodation may develop a reputation for being difficult to deal with, which can have consequences far beyond any individual case.
Of course, lawyers should not extend courtesies simply because they expect opposing counsel to reciprocate in the future. The whole point of a gratuitous professional courtesy is that nothing needs to be received in exchange. Nevertheless, goodwill has value, even if that value cannot always be quantified or immediately realized. Lawyers who are pleasant to work with may find that opposing counsel communicates more openly, responds more promptly to requests, and is more willing to resolve minor disputes informally. These benefits can make litigation less expensive and more efficient for clients, which is something lawyers should strive to accomplish.
There is also something to be said for simply making the legal profession a more pleasant place to work. Litigation is adversarial by nature, and attorneys already have enough reasons to disagree with one another. There is little benefit to creating additional friction over relatively minor matters that have no meaningful impact on the outcome of a case. If opposing counsel asks for a short extension to respond to discovery, and granting that request will not prejudice a client, lawyers should generally be willing to accommodate the request without demanding a concession in return. The same is true for accepting service, adjusting deposition schedules, and providing other routine professional courtesies.
Naturally, there are limits to this philosophy. Lawyers have obligations to their clients, and they should not agree to accommodations that jeopardize substantive rights, create strategic disadvantages, or materially delay proceedings without appropriate consideration. Some requests may also be part of a pattern of unreasonable conduct, and attorneys should not allow their willingness to be cooperative to be exploited. However, there is a substantial difference between protecting a client’s legitimate interests and refusing to provide a harmless courtesy simply because nothing is being offered in exchange.
Looking back, I appreciate the practical wisdom behind my mentor’s advice, even though I do not believe it should be followed in every situation. Lawyers need to recognize opportunities to negotiate favorable outcomes for their clients, but they should also understand that not every interaction with opposing counsel needs to be treated as a transaction. Sometimes, the best response to a reasonable request for a professional courtesy is simply to say yes. Doing so can build goodwill, strengthen professional relationships, and contribute to a more collegial legal community. In a profession where reputation and relationships matter so much, those benefits may ultimately be worth far more than whatever minor concession an attorney could have demanded in return.
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothman.law.
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