To Agree or Not To Agree...That is the Question: On dealing with defense counsel

Photo:  The girls as Pocahontas on Halloween a long time ago... And why is it being used to illustrate this post you wonder...Because (as I'm sure you will agree) it's so cute of course. 

There's a well known "rule" that has floated around for years amongst litigators.  It goes like this.  If your opponent asks you for something, it's okay to say yes.  But only if they give you something that you need back in return.

I know some people who never deviate from that rule.  Saying yes without getting something out of it, is seen as a sign of weakness.  Or ineffectiveness.

This trial lawyer warrior credo is found in Sun Tse The Art of War.  A bible of sorts for trial lawyers.   I have a dog eared copy on my office bookshelf.   Here is one of many such quotes:  "The clever combatant imposes his will on the enemy, but does not allow the enemy's will to be imposed on him."   Grrrrrrrrrrrr.

Of course, as with all bibles, a single quote can easily be taken out of context.

There are plenty of reasons to try to work out pieces of a case with the other side.  There are also plenty of reasons to stand firm and not give an inch.

As a younger lawyer, I pretty much never agreed to anything.  Too insecure that I would be giving up a strategic advantage.  Plus I was trained first as a defense lawyer which meant I was pretty mean.

Now, I pick my battles.  Here are some of the factors that go into the decision of how and whether To Agree or Not To Agree:

• When asked, don't say yes right away.  Say you'll get back to them.
• Think around the issue as completely as possible from all angles.
• If something bad can happen, even if only a remote possibility, don't agree.
• Assume something bad will happen. Only after you can convince yourself that there is no downside should you say yes.
• Whether you and the defense lawyer already get along shouldn't add anything to the equation.  Making friends is not your job.  Representing your client's interests is your only concern.
• In Washington, court rule 2A requires any agreement like this to be in writing.  Otherwise the handshake means nothing.
• If there is no downside, put aside ego and say yes.  You may need a return favor one day.
• Write pretty emails that point out how cooperative you are being.  If there's a dispute later, your writings can be exhibit A.