Celebrating 10 years! 2007-2017

Opposing counsel that don't return calls?

I have two separate cases right now where I cannot determine saulgoodmanwannabe05/26/17
Mind you I'm approaching things from the standpoint of the F bakertaylor05/30/17
There's a tale that in Houston some years back, a guy actual jeffm05/26/17
Welcome to litigation. It took 2 months to get a medical lie vohod05/26/17
TR lived by the adage "speak softly and carry a big stick." mrtor05/26/17
I've found that asking the court to impose sanctions under t bakertaylor05/30/17
When a girl doesn't return 5 phone calls, it's obvious: she' anothernjlawyer05/26/17
Spot on. ruralattorney05/26/17
This. Send Discovery/follow up letters/motions, notice deps sjlawyer05/26/17
I disagree. Yes, the attorney is not interested in settleme persius05/29/17
Yeah, you can't make them return your calls. File suit if yo flharfh05/26/17
Document each call attempt. The record may come in handy. imoothereforeim05/26/17
Happens all the time. Don't take it personally. Just do what parlance05/28/17
I actually half way paid attention to my cle video the other persius05/29/17
Funny anecdote. My firm recently handled such a case where patenttrollnj05/31/17
Haha, so true. Don't they have to get permission from the co flharfh05/31/17
Good question. I'm not sure if the court's approval was patenttrollnj06/01/17
saulgoodmanwannabe (May 26, 2017 - 12:25 pm)

I have two separate cases right now where I cannot determine if the opposing counsel's client would be willing to come to the table and handle things outside of court because none will call me back.

For each of these attorneys I've left at least 2-3 voicemails a week and call every other day without any response. I've also e-mailed or left messages with a secretary.

At this point, each one has got to know I've been trying to contact them. WTF, why can't I get a callback so I know what's going on?

I'm new at dealing with opposing counsel so how do you handle situations where you're apparently not worth their time?

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bakertaylor (May 30, 2017 - 3:15 pm)

Mind you I'm approaching things from the standpoint of the Federal Rules of Civil Procedure, but Look at the relevant rules of civil procedure concerning the cooperation of opposing counsel.

Within the federal rules of civil procedure (and state rules tend to be remarkably similar- though you'd have to look it up to be sure) the court can impose rather expensive sanctions against opposing counsel that refuse to reasonably confer on case-management issues. Perhaps, the best way to handle this is to be proactive- assuming that the discovery phase is over, make an offer and perhaps file that offer as a notice with the court. The opposing party then HAS to come to the table and accept or deny the offer, and if opposing counsel gets caught not informing his client of the existence of an offer (which is also a violation of bar rules in some states, by the way!) , there can be sanctions imposed in terms of a portion of attorney's fees being awarded to your client, if a jury were to award an amount less than what you offer as the ultimate disposition to the case. Also, Counsel can be sanctioned for engaging in Dilatory conduct.

Again, look at the applicable rules of procedure, but I would bet that they are remarkably similar to the federal rules.

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jeffm (May 26, 2017 - 12:50 pm)

There's a tale that in Houston some years back, a guy actually filed a "Motion to Compel Opposing Counsel to Return Phone Calls." Why not?

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vohod (May 26, 2017 - 1:09 pm)

Welcome to litigation. It took 2 months to get a medical lien check AFTER counsel offered and I accepted it. Luckily I am a salary man so I don't starve.

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mrtor (May 26, 2017 - 2:24 pm)

TR lived by the adage "speak softly and carry a big stick."

Many attorneys are ignored because they're annoying and pester opposing counsel about every little thing. Other attorneys are forgetful or too busy to return every call or email. Ultimately, you need to decide which issues you need answers on and focus only on getting those answered. If emails fail, turn to the phone, if the phone fails, catch them at status calls.

If none of the above work, hit them with the stick. Threaten or actually seek a trial date. As long as you don't over use it, this ole fail safe has never let me down.

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bakertaylor (May 30, 2017 - 3:22 pm)

I've found that asking the court to impose sanctions under the applicable rules of procedure is remarkably effective to deter dilatory conduct of opposing counsel.

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anothernjlawyer (May 26, 2017 - 2:35 pm)

When a girl doesn't return 5 phone calls, it's obvious: she's not that into you.

Same principle applies. You called them asking to settle. They ignored it. They're not that into settling right now.

Work your case.

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ruralattorney (May 26, 2017 - 5:23 pm)

Spot on.

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sjlawyer (May 26, 2017 - 5:35 pm)

This. Send Discovery/follow up letters/motions, notice deps, file motions.

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persius (May 29, 2017 - 2:30 pm)

I disagree. Yes, the attorney is not interested in settlement. The problem is that there are so many scumbags practicing law that you do not know whether the client is interested or not because it happens all the time that attorneys do not let their client know about your interest in settlement. The biglaw types that proceed this way without responding because their client is not interested in settlement are also asshats.

See my post below about the change in the ethical rule. If your client really wants to settle the due diligence is to have your client contact their client. You can even email your client and they could contact their client by email. Sent the asshat who is not responding an email and let him know you are doing it. If the client is not paying the attorney you win big, and if the attorney is not telling the client about the settlement offer you win big.

Also, send a letter to the asshat himself so you can document all the times you tried to contact for settlement so you can get an attorney's fee award and a potential future bar complaint.

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flharfh (May 26, 2017 - 5:20 pm)

Yeah, you can't make them return your calls. File suit if you have to. The litigation process is set up so that you don't need OC's cooperation (although it's a total PITA in that case).

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imoothereforeim (May 26, 2017 - 8:46 pm)

Document each call attempt. The record may come in handy.

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parlance (May 28, 2017 - 11:57 pm)

Happens all the time. Don't take it personally. Just do what is necessary to move the case forward.

It's not always the other side being stubborn. I've failed to return a number of phone calls and respond to good faith letters in a timely fashion because my office is oh-so-swamped.

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persius (May 29, 2017 - 6:49 am)

I actually half way paid attention to my cle video the other day and learned that the ethical rule that forbids you from contacting a represented person has been amended. It now allows you to give reasonless notice to the attorney that your client will be contacting their client. There is no need to ask permission, it is just notice.

Maybe the client is not paying their lawyer or maybe the opposing counsel is a crooked boomer. This rule allows you to circumvent whatever the situation is. The CLE was from New York so you would probably need to research it for whatever your state is.

Another tactic is to spell out a settlement offer in a letter. It makes it a little more difficult for the lawyer not to pass it on but some will still shirk their ethical duty.

FYI - opposing counsel exists to make life difficult.

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patenttrollnj (May 31, 2017 - 1:54 am)

Funny anecdote. My firm recently handled such a case where opposing counsel was ignoring us. Turns out, their client wasn't paying them, so they withdrew.

This begs another question. Why did opposing counsel not give us notice of their withdrawal?

This is the type of cr*p you deal with when you practice toilet law.

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flharfh (May 31, 2017 - 1:56 pm)

Haha, so true. Don't they have to get permission from the court? And technically the other side can object to the withdrawal if there is prejudice.

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patenttrollnj (Jun 1, 2017 - 1:31 am)

Good question.

I'm not sure if the court's approval was necessary in this case, but opposing counsel certainly did need to give notice. Hell, I've even seen a Notice of Withdrawal in situations where a mere associate gets replaced.

It just goes to show how seriously certain cases are taken, whether by the attorneys or by the court.

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