Early on in my career a simple gesture of professionalism from opposing counsel coupled with a comment from my client (also an attorney) reaped many returns. I doubt that either opposing counsel or my client recall the conversation. Yet when I think about the conversation, I realize the importance of developing a network of peers who can provide perspective and context. One of the greatest benefits of KCBA membership is the opportunity to find and develop that network. On more than one occasion, my attorney network has helped me crawl out of my tunnel vision.
When I first started out as a civil litigator in private practice, I interpreted the term "zealous advocate" as a charge. Litigation fed my competitive nature. In fact, one executive director of a nonprofit likes to share a story about me "trash talking second-graders" by bragging that my volunteer team bagged more bags of rice than a team of second-graders at a food bank. As the story goes, upon learning that a class of second-graders had bagged 20 bags of rice on a previous visit, I insisted that my team bag at least 30.
Early in my practice I eagerly accepted each and every opportunity to appear in court. I watched other trials, soaked up "war stories" and sought out trial advocacy CLEs. Quite simply, I wanted to win. I viewed opposing counsel as the "other," and I treated their concessions as something to be suspicious about and over analyzed litigation tactics. Trial continuance? I immediately assumed they had uncovered a smoking gun and needed more time to box in my clients.
I obsessed about the order in which parties and witnesses were deposed. I thought of myself as a bulldog. I even enjoyed attending the status conference hearings that the King County Superior Court used to require. In those status hearings, attorneys (mostly green associates) lined up for a cattle call in the presiding courtroom to receive a green sheet of paper from the clerk and avoid a $35 fine.
About one year into my career, one gesture resonated with me. In this particular case, my firm represented a corporate entity. My client was in-house counsel for the entity and was very accustomed to working with newly minted attorneys who probably fit all of the TV lawyer stereotypes.
In that particular case, the plaintiff raised a number of discrimination claims. The case followed a typical litigation cycle: interrogatories; requests for production; depositions. We conferred over discovery disputes and protective orders. During the depositions I inquired about medical issues relating to the damages requested. The questions were personal, if not invasive, but all relevant to the issues raised by the plaintiff. The plaintiff paused before answering questions about his health.
I do not remember how much we settled for or whether partial claims were dismissed on summary judgment. As I reflect on the case, I do not recall many details about the plaintiff or even the facts of the case. This case is memorable because of opposing counsel and my client.
We went to mediation and my client and I settled in for a day of negotiating. We declined a joint session, and dissected plaintiff counsel's mediation position and brief. We exchanged offers and demands through the mediator. We settled the case. As we walked out of the mediation, my client and I ran into opposing counsel and his client. Opposing counsel thanked me for my professionalism during the litigation process. Initially, I received his gesture as a professional courtesy, almost a pro forma gesture. I likely said the same to him.
After his client departed, but in front of my client, opposing counsel said he appreciated the care and tact I displayed with the plaintiff during his deposition. Opposing counsel explained that the plaintiff had great misgivings about the litigation process and was very reluctant to talk about his medical issues during the deposition. Opposing counsel ended the conversation by saying, "so thank you for that."
After opposing counsel walked away, I turned to my client and started to downplay the comments made by opposing counsel and wondered whether opposing counsel made those comments because we agreed to a higher settlement than he had expected. My usually laid-back client stopped walking. He got serious. He told me that opposing counsel had no obligation to express his gratitude, and expressing such sentiments are the exception to litigation and not the rule.
I never heard from opposing counsel again and had no further litigation with him. His gesture and my client's comments, however, really struck a chord with me. Opposing counsel extended a gesture of kindness not as a trial tactic or as any leverage: it was simply that, a thank you. His comment (and my client's) changed my perspective on litigation and have served me well.
As I think about the benefits of membership in the King County Bar Association, this moment always comes back to me. KCBA membership offers the opportunity to build an attorney network and to take advantage of a critical mass of attorneys from a wide array of practice areas. Section meetings are an excellent way to bounce ideas off colleagues.
The story probably sounds a little self-serving: After all, the climax of the story centers around a compliment about me. But really, the focus is on opposing counsel and his simple act of professionalism.
Kim Tran is the president of the King County Bar Association. She is in-house counsel with Microsoft's Global Employment and Migration Law Group. She can be reached at 425-705-7609 or firstname.lastname@example.org. The views expressed in this column are her own and not those of her employer, Microsoft.