“Talk Less, Smile More”: Embracing Collegiality to Improve Your Success as a Lawyer
Erik J. Pless, One Law Group S.C., and Kristen S. Scheuerman, Weiss Law Office, S.C.

To be clear up front, we are not actually advocating that lawyers stop talking; as trial attorneys, we ultimately advance the best interests of our clients in front a jury by doing just that. But as two Hamilton fans, we could not pass up the chance to use Aaron Burr’s quip to Alexander Hamilton as sound advice when it comes to the considerations we think everyone should give to invoking collegiality as we manage and handle our caseloads. 

Although we may each have varied practices, we all share one thing in common: we are officers of the court. Too often, though, that title becomes much more hortatory and less practically meaningful. Depending on the dictionary you consult, collegiality is generally accepted to mean a cooperative interaction among colleagues. And while the core of our profession is adversarial, we think that all too often, practitioners assume that a scorched-Earth, contentious approach to litigation and opposing counsel is somehow the most effective way to advance a client’s interests. We would encourage folks who practice this way to consider whether a more cooperative and collegial approach to interacting with other attorneys may actually produce more favorable results and reduce some stress along the way.

Ethically speaking, we are each required to behave and practice in a manner consistent with the oath we all took when we were accepted into the Bar.[1] In case you may have forgotten what we affirmed to do as lawyers, it was this: 

I will support the constitution of the United States and the constitution of the State of Wisconsin;

I will maintain the respect due to courts of justice and judicial officers;

I will not counsel or maintain any suit or proceeding which shall appear to me to be unjust, or any defense, except such as I believe to be honestly debatable under the law of the land; 

I will employ, for the purpose of maintaining the causes confided to me, such means only as are consistent with truth and honor, and will never seek to mislead the judge or jury by any artifice or false statement of fact or law; 

I will maintain the confidence and preserve inviolate the secrets of my client and will accept no compensation in connection with my client’s business except from my client or with my client’s knowledge and approval;

I will abstain from all offensive personality and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which I am charged; 

I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay any person’s cause for lucre or malice. So help me God.[2]

We will resist the temptation to analyze what abstaining from “offensive personality” could mean, but we also wonder how often in the hustle and bustle of our busy practices we reflect on the words we all spoke when we were young, scrappy, and hungry.

Beyond the oath we all took, the Wisconsin Supreme Court Rules state that, “[a]dherence to standards of professionalism and courtesy, good manners and dignity is the responsibility of each judge, court commissioner, lawyer, clerk, and other personnel of the court who assist the public.”[3] The Rules require members of the bar to do all of the following: 

• Maintain a cordial and respectful demeanor and be guided by a fundamental sense of integrity and fair play in all their professional activities.
• Be civil in their dealings with one another and with the public and conduct all court and court-related proceedings, whether written or oral, including discovery proceedings, with civility and respect for each of the participants.
• Abstain from making disparaging, demeaning or sarcastic remarks or comments about one another.
• Abstain from any conduct that may be characterized as uncivil, abrasive, abusive, hostile or obstructive.
• Make all reasonable efforts to reach informal agreement on preliminary and procedural matters.
• Attempt expeditiously to reconcile differences through negotiation, without needless expense and waste of time.
• Abstain from pursuing or opposing discovery arbitrarily or for the purpose of harassment or undue delay.
• If an adversary is entitled to assistance, information or documents, provide them to the adversary without unnecessary formalities.
• Abstain from knowingly deceiving or misleading another lawyer or the court.
• Clearly identify for the court and other counsel changes that he or she has made in documents submitted to him or her by counsel or by the court.
• Act in good faith and honor promises and commitments to other lawyers and to the court.[4]

Generally speaking, most legal communities in Wisconsin, even the “large” ones, are fairly small when it comes to crossing paths with our colleagues. This is particularly true in our industry of civil – often personal injury – litigation. There are so many karmic adages that fit in terms of why collegiality can be so important to truly advancing the best interests of one’s client: what goes around comes around; what’s good for the goose is good for the gander, and so on. Because none of us, despite Burr’s declaration otherwise, are in fact inimitable, we will all make mistakes and miss deadlines and require some grace throughout our careers. Collegiality should not be confused with weakness or docility. For example, when you agree to give opposing counsel an extension on discovery; or forgive a missed deadline and allow for supplemental documents to be filed, you are not necessarily “giving in” or “letting things slide.” Rather, you have created a credit in the bank of favors and when, inevitably, you find yourself in need of an extension, you will be much more likely to receive this kindness without the need for motions (that may not go your way and come with additional cost and investment of time) or protracted arguments. Moreover, as almost every judge will tell you, discovery motions are disfavored both in law and in practice. Refusing to permit opposing counsel a courtesy that is often given as a matter of course will reflect poorly upon the attorney who forces the matter into court. While an attorney may feel that refusing to grant extensions or extending grace to opposing counsel makes them a formidable adversary, this behavior often may shape an attorney’s reputation in the local legal community and with the courts. Judges are people too – they talk about which attorneys are reasonable and which are not. And while judges will do their best to apply the law to the facts of a case before them, do not doubt that when an obstinate, uncooperative attorney finds themselves seeking reprieve from the court, they may not find the court all too willing to offer forgiveness.

We think it is also worth noting that while collegiality between counselors is recommended, this cooperative and professional manner of interaction should also extend from attorney to staff. It is not uncommon in our line of work to need to communicate frequently with paralegals, office administrators, and legal assistants from offices other than our own. We are confident in suggesting that if you treat opposing counsel’s staff with respect, patience, and general courtesy, you will accomplish far more in achieving whatever goal it is you have than if you are condescending, patronizing, and demanding. How you interact with staff can also impact your relationship with trial counsel. After all, our staff are usually in the room where it happens and are integral in getting a case across the finish line. We are both personally very protective of our staff and if we hear that opposing counsel has been rude, aggressive, or demeaning to our support team, you can rest assured that our inclination to extend courtesies, kindness, or favors to the offending attorney will be severely curtailed. 

Likewise, the hiring and training of staff should include an emphasis on collegiality not only with other attorneys but also with opposing counsel’s staff. Staff often have discretion in calendaring for an attorney. A well-regarded staff member will often get the benefit of the doubt from other staff in the legal community. This can result in ease of calendaring, a priority for responsive discovery and even travel considerations when scheduling depositions, mediations, or hearings.

While we each must, for the most part, abide by the wishes and direction of our clients, it is highly unlikely that anyone has actually had a client say to them, “I forbid you from cooperating with counsel, and I insist you shout whenever necessary, and be as obstructionist as possible.” We certainly understand that not every missed deadline can be forgiven, but honestly most can without significantly prejudicing your client. The case can still be zealously defended without throwing away your shot. Few missed deadlines are worth insisting upon strict adherence. If the case can proceed with an altered deadline, most courts will permit a modification of the scheduling order. We also understand that sometimes strategy requires certain defenses or claims be kept close to the vest, but like so many things, there is also often an opportunity for professional courtesy and balance. We are not suggesting that anyone disadvantage their client in the interest of “being nice.” But building trust and establishing relationships with opposing counsel of mutual respect and cooperation will often far outweigh any “risk” that may attach to such behavior.

Despite our best efforts, there are always going to be folks on the other side of the “v.” who just seem determined to make life miserable, for themselves and everyone involved in a given matter. If your practice involves defending claims, it will pose a challenge but you need to do whatever you can to fairly evaluate the case on its merits and try not to allow your feelings about opposing counsel impact your professional judgment and evaluation in terms of a case value. The converse is also true: if you and opposing counsel have worked cooperatively and there is an ease in exchange of information and a rapport amongst yourselves, you must also not overvalue a case because of this relationship. Your duty to your client is to fairly evaluate the claims presented, the presentation of the injured party or claimant, and the available defenses. However, we continue to insist that building collegiality will still benefit you and your client by reducing cost and creating efficiencies.

Specific to reducing cost and creating efficiencies is the possibility to directly negotiate claims when opposing counsel is someone who you trust, respect, and work well with. We all fall into the trap of simply scheduling mediations, and going through the motions because the court inevitably orders ADR. But when you and opposing counsel can communicate effectively and exchange information in a direct and trustworthy manner, it is often possible (with a client’s consent) to directly negotiate certain claims. In the right case, this can save considerable time and expense while still achieving a favorable outcome for the client. Even in cases that are destined for formal mediation, a preliminary phone call to opposing counsel discussing settlement parameters can help opposing counsel temper client expectations before the mediation. This not only makes opposing counsel’s job easier, but it also increases the likelihood of settlement. Make a note that often the world is wide enough for both plaintiff’s and defense counsel to exist and do their jobs effectively without the constant need for acrimony and superfluous efforts.

Finally, we would caution our more colorful and outspoken colleagues to avoid reducing their feelings about opposing counsel, litigants, or judicial officers to writing. While we do not think everyone needs to spend as much time as Angelica did analyzing the placement of a comma in a letter, it is worth considering what you choose to put on paper and what might be left better unsaid. We will all face situations where our buttons are pushed, or we have strong feelings about a particular attorney or party in any given case. But before sharing those feelings on paper, consider reading out loud what you intend to write and consider how it might sound if it was read in court, in front of a judge. Every document we create throughout the course of litigation has the potential to become an exhibit attached to a motion to compel at some point down the road. And there can be times when our inability to temper our quill can result in disciplinary conduct or even licensure suspension.[5] No attorney wants to be the subject of a summary of “Attorney Discipline” article in Wisconsin Lawyer. 

There is never one right way to do anything in life, yet we would strongly suggest that we all consider how beneficial collegiality is to our goals as lawyers. Apart from being required of us pursuant to the rules of professional conduct and the oath we all swore when joining the Bar, there is a benefit to working cooperatively with opposing counsel on the cases we find ourselves involved in. History has its eyes on all of us, and we are confident that the most meaningful legacy to create is one of civility, professionalism, and respect. 

Author Biographies:

Erik J. Pless leads the insurance defense litigation team at The Everson Law Firm in Green Bay. He received his J.D. degree from the University of Wisconsin in 1993 and a B.A. magna cum laude in 1990 from Wisconsin Lutheran College in Milwaukee. Erik has been an active trial attorney in Northeast Wisconsin since 1993. Over the past 27 years, Erik has litigated more than 70 jury trials to verdict and has argued before the Wisconsin Supreme Court on multiple occasions. He practices primarily in the fields of insurance and tort law, defending insureds and insurers in personal injury, insurance coverage, and bad faith litigation. Erik also handles product liability, legal and other professional malpractice, premises liability, and mold litigation. Erik served on the Board of Directors for the Wisconsin Defense Counsel from 1998 to 2003. He is a member of the Council on Litigation Management and the Association of Defense Trial Attorneys. Erik earned Board Certification as a Civil Trial Specialist from the National Board of Trial Advocacy in 2004.

Kristen S. Scheuerman joined Weiss Law Office, S.C., in October 2022 after spending more than a decade at a large Fox Valley law firm, where she practiced as a Shareholder. Kristen’s practice has always been focused on personal injury and civil litigation, and before joining Weiss Law Office, she also served as a municipal prosecutor. Throughout her career, Kristen’s practice has also included appellate work in a variety of practice areas. Kristen earned her bachelor’s degree from Lawrence University and her law degree from Marquette University Law School. She is admitted to practice in all Wisconsin state courts and both district courts.