Anybody with siblings knows that the person responsible for starting a fight does not always get punished. Hockey players know the same thing. Occasionally the provoker gets a free ride, and only the retaliator gets punished. Most often, both parties get punished. This is the logical result where the referee wants to make sure that the wrongdoer is punished, even though he does not have enough facts to assign blame.
As lawyers we have managed to create a legal system that actually stands this logic on its head. Thanks to hourly billing, it will typically be the case that both combatant lawyers will be rewarded by the unprofessional behavior of either lawyer.
It works like this. A lawyer acting unprofessionally may delay a
matter by raising any number of smokescreens which can be said to be in his client’s interest, but do nothing of value for his client while raising the lawyer’s fees. For example, a lawyer can file a meritless motion to disqualify opposing counsel, a futile motion to dismiss, or a motion to transfer venue. Preparing the motion takes time. This has the effect — and often the purpose — of increasing the fees that the lawyer will bill and receive from his client. The meritless motion forces the other side’s lawyer to respond in kind, filing opposition papers, doing legal research, and perhaps preparing for and attending an oral argument on the matter. The fees incurred by both clients are substantially increased, the motion is denied (as both lawyers knew it would be), and the case is no closer to being resolved. Both lawyers receive a windfall at the expense of their clients in the form of more hours billed and collected.
In theory, this sort of conduct is deterred by courts providing sanctions and other discipline against attorneys who file frivolous motions. In practice, however, courts are besieged with wasteful motion practice and other unprofessional conduct, and the possibility of sanctions only adds to the legal bill. Courts rarely award sanctions against attorneys for filing frivolous motions. The court will typically chalk up a meritless motion to “zealous advocacy” and decline the invitation to award sanctions. The sanctions motion is often denied only after both sides brief the issue, and a sanctions hearing transpires where both sides present evidence. Again the costs of the litigation on both sides rise geometrically as both sides slug out the sanctions motion, again the case is no closer to being resolved, and again each lawyer receives a windfall at the expense of their client.
No matter who starts the fight, both lawyers win, and both clients lose.
Tips For Clients To Avoid Paying For Lawyer Misconduct
- Hire a lawyer who will move forward with a transaction or litigation in an effort to resolve the matter on favorable terms. While some defendants or “deep pocket” litigants will see stalling and delay as a beneficial tactic, protracted litigation typically benefits nobody but the lawyers. Purposeful delay of a litigation is both unethical (though seldom punished) and self-defeating. If you truly believe that delay is in your interest, make sure you weigh the increase in fees, time expended, opportunity costs, and aggravation.
- Beware of the lawyer who is constantly vilifying opposing counsel. This is probably an indication that emotions are getting in the way of cost-effective representation. Remember, it does not matter who started the fight.
- If possible, and in consultation with your attorney, keep the lines of polite communication open with your adversary. The litigation is far less likely to get nasty (and more likely to settle) if there is some positive relationship between the parties.
- No matter how much you dislike your adversary, do not relish his expenditure of legal fees. Wars of attrition transform litigation into a sophisticated game of chicken. The only winners of this game are the lawyers.
- Do not be afraid to be the “adult” in the litigation. Not every unprofessional attack or meritless motion requires an equally heated or voluminous response. You can usually protect your rights against unwarranted attacks with terse factual statements. Courts generally appreciate concise, fact-based presentations going to the merits of the case. Courts are rarely moved by personal attacks, haggling over ancillary issues, or efforts to stall.
- If your lawyer suggests filing a non-dispositive motion, ask the lawyer how that motion will advance your interests in the case. If the answer is either not convincing or takes more than thirty seconds to explain, ask your lawyer to forego the motion.
- Consider lawyers who will charge you on something other than a strict hourly basis. This may include a fixed fee, a contingent fee, or a hybrid fee that combines a lower hourly rate with pre-determined value-based incentives. This will have the effect of shifting at least some of the costs of attorney cat-fighting to your lawyer.
- Consider asking for a reduction in your bill where there is a lot of attorney time spent on nasty letters concerning issues that are far removed from the merits of the litigation.
- Forego motions for sanctions unless opposing counsel’s ethical lapse is both substantial and undisputable, or unless the presiding judge has invited you to make the motion. Otherwise, you will probably lose the motion.
All clients want an aggressive attorney to represent their interests in court. While a truly aggressive attorney will focus on the matters which will actually determine the outcome of a case, many attorneys show their aggression through unprofessional attacks, or by unnecessarily increasing the scope of motion practice and discovery. The courts and organized bars will only help in extreme cases – it is generally up to the client to make sure he is not paying for unnecessary frolics.