Professionalism and ethical conduct are paramount when dealing with lawyers on the other side of a negotiation or case. However, people often make a lot of mistakes in the way that they interact with opposing counsel because they believe that the opposing counsel is the ‘enemy’. They often forget that the opposing counsel could tomorrow be their new boss, employee, colleague or even a potential client.
This article explores these issues and helps prevent you from making the same mistakes as others.
Stay Objective
Lawyers often conflate their personal feelings about the opposing counsel with the task at hand. You may not like every lawyer which appears before you but it is important to keep your personal feelings out of negotiations to get the best outcome for your client. Let your judgement be guided by the objective facts and merits of the case or document rather than your emotions around the opposing counsel.
Remember that your primary role is to represent your client’s interests, not to win personal battles.
Avoid personal comments
Following on from the previous point, a lot of lawyers resort to ad hominem arguments or make personal comments. Ad hominem arguments are a logical fallacy where you attack the person making the argument as opposed to attacking the substance of their arguments. These may be required in a court of law when determining a witness’ credibility but have no place in negotiations over a legal document.
This is counter-productive behaviour and will only lead to a prolonged negotiation process. As a lawyer, your job is to get the most effective result for your client based on your risk analysis in the least amount of time. You may not always bill a client on the time you spend on their work – in these cases, the longer you spend, the more money you lose. Attacking the opposite side personally will serve no purpose other than prolonging the negotiations.
Transparent edits
In transactional negotiations, parties are negotiating over contracts. The way this often happens if via redline or track changes which is a practice of editing documents in a way which highlights each change made to the document.
There are several instances where counsel try and sneak some edits in the document without having redline/track changes being switched on so that these edits are not highlighted to the other side and hope no one notices them.
Good practice of course is to run your own checks across the document, comparing the version sent by you vs the one received from the opposite counsel but this practice of sneaking in edits shows a lack of respect for the other side.
Maintaining transparency is crucial and displays your integrity as a lawyer. There may be certain changes you want but the right way to get them in is to discuss and negotiate with the other side and not sneak any edits in.
Substantiating edits
There are several instances where lawyers may make wholesale deletions in documents where they may not agree with the inclusion of a clause/provision. This in itself is not an issue but becomes an issue when these deletions are not accompanied with relevant reasons behind them.
Providing reasons and clarifications behind your edits in an agreement serves a two-fold purpose:
- Shows the other side that you are not just blanket deleting their provisions and that you have understood their intention of including the clause;
- Helps the other side understand your concerns and reservations which helps them propose solutions which address your concerns while covering their points.
Substantiating your edits with reasons in comments helps facilitate productive discussions and lessens the time required to close the transaction.
Build relationships
Treat opposing counsel with respect no matter your personal equation with them or your feelings about them. Building professional relationships can lead to more productive negotiations and better outcomes for your clients.
Given the legal industry is a small community and more often than not, you will come across them in some capacity or the other. You might work on other negotiations/cases opposite them or even work with them together. Therefore, it is always in your interest to have a collaborative approach rather an adversarial.
Building relationships with your opposing counsel can also help build relationships with your clients. Clients often view lawyers as blockers to business and not facilitators of business. Having relationships with opposing lawyers often helps reaching closure faster and thereby allowing the client to carry out their business activities that much sooner. They will always appreciate you for this.
Tips from the industry
A blog on the website of the Women’s Bar Association of Illinois provides some further tips on dealing with difficult counsel[1]. These include:
- Agreeing on common ground with the other side right at the start to disarm the opponent and facilitate easier communication.
- Separating the person from the problem to not get engulfed in arguments with the other side.
- Control the conversation by reframing the issues to discuss how to satisfy both sides’ interests.
- Pick up the phone to the other side rather than just exchanging emails. Hearing a person’s voice on the other end often helps defuse situations and engaging in quicker dialogues as it gives you a sense check of how the other side is behind which words in an email may not entirely convey.
Conclusion
Professionalism in dealing with opposing counsel is critical for effective and ethical legal practice. By avoiding common mistakes, focusing on transparency and consistency, and maintaining professional advocacy, lawyers can foster a more collaborative and productive negotiation process. Remember, your role is to represent your client’s best interests, and this is best achieved through respectful and ethical conduct.
You may be interested in reading the below articles:
- The Hidden Rules of Networking in Law Nobody Tells You
- Mastering Time Management: Essential Skills for Lawyers
- Mastering Deep Work for Lawyers – Unlock Focused Success
[1] Pari Karim and Jennifer Ballard, ‘8 Tips for Dealing with Difficult Opposing Counsel’, Women’s Bar Association of Illinois, https://wbaillinois.org/blog/8-tips-for-dealing-with-difficult-opposing-counsel/ (last accessed 27 January 2025)
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