Wednesday, February 26, 2014

We have to get along, it is a small sandbox

I heard a story recently in my travels. The story was of an experienced workers' compensation attorney whose behavior described in the story was not flattering. There are two sides to every story, and therefore I put no particular stock in the story as currently told by only one side. I find it interesting, and worthy of describing because the story helps to illustrate a fallacy that I have heard reiterated too many times over the years. 

In this alleged incidence, the experienced attorney became embroiled in a discovery dispute with another attorney. The situation proceeded through the usual efforts at obtaining the discovery, and devolved through the normal motion process, into the workers' compensation practice's "exceptional circumstances" process that required a hearing.

The root of the dispute described to me was unfortunate at best. This experienced attorney, if the story were true, allowed him/herself to be dragged into the weeds by the inappropriate behavior of a less experienced, but nonetheless tenacious attorney. Essentially, the scheduling of discovery appears to have devolved into a debate about who would get to "go first" in the discovery deposition process, and apparently as important to the two attorneys, who would get to go last, deposing his/her expert just before trial.

From the initial disagreement regarding the timing of the final expert depositions just before trial, the dispute between counsel allegedly flowered into a series of ancillary disagreements. According to the storyteller, by the time of the "exceptional circumstance" motion hearing, the two attorneys were no longer able to agree on what day of the week it was. Frustration had evolved to animosity and then to anger. Professionalism had taken a holiday, and the return ticket had been left open.

The outcome is not important. The behavior is also not important, even if completely true. What is important is that we will all make mistakes of judgement. We are all human and will lose our patience in certain situations periodically. As a Japanese proverb provides, "fall down seven times, get up eight." The point is that we will all stumble, and the secret of professional success is far more about the recoveries we make more than the failures we suffer. 

What I am pleased with in the story is that, as it was related to me, the experienced attorney recognized the fallacy of the anger. S/he rose above the dispute, though it took some time, and was the one in the course of the hearing process to propose a series of professional and mature compromises that allowed the two attorneys to move past the vast majority of their scheduling disputes. As I heard it, the judge still had to make a few decisions about some remaining differences, but was blessed by the presence of two attorneys who by then had grown out of the animosity and who made their arguments about the final disputes on the merits and without acrimony.

I was most proud of the description I got of the conclusion of the process. The judge announced the rulings and adjourned the hearing. As related to me, the two attorneys did what all attorneys should do after such a process, they shook hands. They put the angst and the anger aside and moved forward. That is professionalism. I do not suggest that they parted friends. We may not be able to evolve that far in all relationships. However, if we can't be at the friends end of the spectrum, we must avoid the enemy end also, and at least work in the middle where there is mutual respect and professionalism.

Certainly, not all disputes can be resolved without a judge's order (and sometimes an appellate court or two's opinion) and it is never easy to accept an outcome that you opposed. At the end of the day, however, remember that what is important is that you can only do what you can do. You can only change so much. In the movie Bull Durham, the simple philosophy was explained "sometimes you win, sometimes you lose and sometimes it rains." You will have good days and bad days in litigation and in life. Know these limitations, do your best, keep your chin up and retain your composure. And when it is over, shake your opponent by the hand and put it behind you. 

There will be another day, other disputes, other challenges. Live to fight the next battle with your dignity and your self-respect. It never pays to raise your blood pressure over things you cannot change. And remember, it is a relatively small sandbox. You are likely to run into these same people again. 



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