A Tip from the Machiavellian Lawyer

The Machiavellian Lawyer once said:

It is commonly thought that lawyers should be “civil” with one another, meaning they should concede ground to their opponents merely because as lawyers, they're all secretly in league with one another.

In a typical scenario, a lawyer will receive a call from his opponent asking for an “extension of time” a few weeks before an important brief is due. A sense of professional courtesy will prevent the first lawyer from asking the second why the extension is needed.  But if asked, the second lawyer will freely admit the truth: The extension is needed because he is taking a much-needed ski vacation to the Rocky Mountains, his third this year.

It will remind the first lawyer that he too is much in need of a ski vacation.  So like a buffoon, he will accede to the request without further inquiry.  After all, isn’t he likely to need an extension himself very soon?

The wise lawyer knows the value of a good horse trade. When the opposing lawyer asks for a favor, the wise lawyer will reflexively answer no. This will evoke panic in his opponent and increase the wise lawyer’s bargaining position. After some time has passed, the wise lawyer will “reconsider” his position but ask for something concrete in return. He might ask his opponent to answer the discovery requests to which his opponent just filed lengthy and baseless objections. He might ask his opponent to agree to an amended pleading without having to seek leave of court. He might ask his opponent to stipulate to the admissibility of the plaintiff’s medical records at trial.

Remember it well: Only fools engage in lawyerly “civility” without being sure to get something in return.

[Like this post? It's one of many included in my book How to Feed a Lawyer (And Other Irreverent Oberservations from the Legal Underground). Details here.]

Comments

[Diana]

Hey there, long time lurker, first time commenter.

Just wanted to register a dissenting opinion on the above. I'm a lawyer so I get to weigh in, right? I understand where the attitude comes from, but I think it's unneccessary. The concept of civility doesn't meant that we "should concede ground to their opponents merely because as lawyers, they're all secretly in league with one another." It means that we get along, we try to work things out, because we are not enemies. We're just 2 sides trying to do our best for our clients. And getting along means maybe we'll be more able to settle our cases, we're not seen as contentious jerks, or maybe just that it won't suck so much to go to work and deal with each other.

As a side note, most of the times I've asked for an extension or been asked to assent to one, there's a good reason. Whether it's just being swamped with work, health issues, or family issues, it's no big deal to acquiesce to an extension. And it does build up good will for the future.

[David Giacalone]

Although Steve Minor shared his new favorite Shakespeare quote today: "And do as adversaries do in law,— Strive mightily, but eat and drink as friends" [Taming of the Shrew], it is Mack the Lawyer who seems to be demonstating the approach of most lawyers when asked for any favor that doesn't clearly benefit themselves. That's the problem with seeking civility rather than mutual respect -- or, heaven forbid, seeking to do what is best for the client and the justice system. Civility doesn't raise the Bar very high.

[Mack the 1L]

These posts are supposed to be tongue-in-cheek, negative allegories, right? Realistically, wouldn't operating like Mach be harmful to a plaintiff's lawyer's practice and his rep within the Bar?

[Evan]

Mack the 1L:

You ask, "These posts are supposed to be tongue-in-cheek, negative allegories, right?"

Unfortunately, the Machiavellian Lawyer is one of those old-fashioned sorts who doesn't understand how to make a comment. So you won't see him commenting here in response to your question. Moreover, as a close friend of his, I don't really want to put words into his mouth. So we're stuck, basically--presented with an oracle of sorts but no one to interpret his words of wisdom, except for people like you and others who may or may not agree.

All I can advise you to do is to carefully consider what the Machiavellian Lawyer has to say, then decide for yourself whether you agree: the task of interpretation is in your hands.

[OLS]

Nah, you agree to extensions to build up brownie points. But you make sure it's always in writing so that you can find a way to put the correspondence before the court and show how reasonable you have been and how unreasonable the opposition has been. *evil chuckle*

- OLS

[Mack the 1L]

That's not entirely accurate, Mr. M has commented, through you, in response to comments about his previous insights.
But what I am asking doesn't really require more input from Mr. M.
As a plaintiff's lawyer, how important is your reputation among other lawyers?
Mr. M. seems to be a proponent of the "better to be feared than loved" school of thought.
Is that a good approach in the trial bar?
Are you going to generate more referrals through friendships or by being a tough adversary?
This is a question directed at your general readership, not Mr. M. in particular.
Thanks,
M

[TPB, Esq.]

Mack, plaintiff's lawyers (I assume you mean personal injury plaintiffs) don't really associate with other lawyers. We have our own reindeer games in which we don't let those rednosed bastards interfere. ;-)

[David Giacalone]

Mack the 1L, Rather than worrying about how to get referrals (already!), I'd say choose a style of practice that you feel comfortable with as a human being (and choose to be a human being first. Neither phony friendliness nor forced cynicism will "benefit" you in the long run.

[tom]

Well, one thing here is ignorant: you can't amend a pleading even by agreement WITHOUT LEAVE OF COURT. It's usually a nullity.

[lawinsider]

You just reposted this, and yikes, I'm about to be the first person to comment on it since 2005. Well... good thing the issue is timeless. I'll take the position that everything is a negotiation, and there's certainly a way to maintain civility and make certain that your best interests are being considered without coming across as petty. Such is business. If you're good at it, people will forgive you for it.

[Kaye Wolf]

You should learn to work with Pro Se Litigants. I know you don't think you want to, but if you are in real estate law chances are that you may, real soon. Some of what you do between yourself might be construed as extortion when you are attempting to negotiate with an unequal opponent. Because the Pro Se Litigant only interacts with you once (and has probably watched a lot of television), you really may want to reconsider how you communicate, or worse, fail to communicate, with the Pro Se Litigant.