Take an Adversary to Lunch

Civility Flourishes When Lawyers Know One Another

By Amy Johnson Conner

While legal pundits speak ad nauseum about the need for more civility among lawyers, the Atlanta Bar Association has actually been doing something to make it happen – lunch date by lunch date.

For the past seven years, the litigation section has sponsored “Take Your Adversary to Lunch Week,” encouraging lawyers to dine with adversaries they have had conflicts with in the past. The program spans two weeks each year, typically around Valentine’s Day.

As an incentive, the bar association encourages participants to send a copy of their lunch receipt, which will be entered in a drawing to win one of four restaurant gift certificates ranging from $50 to $200. This year about 23 pairs entered the drawing.

“It’s allowed me to get to know other lawyers on a personal level, rather than through pleadings,” said Robin Frazer Clark, who won a gift certificate this year after taking several colleagues to lunch, and is a big fan of the program. “When you get to know somebody on that level, you’re not going to be a jerk to that person. Hopefully it’s a two-way street, once they’ve had lunch with me perhaps if they intended to have a scorched-earth policy they think twice.”

And ultimately, Clark said, the improved relations help her clients.

According to Stephen Bundy, a legal ethics and civil procedure professor at the University of California at Berkeley, civility and professionalism have been on the decline for more than a decade, largely because of the increasing number of lawyers and proliferation of large firms.

“When the litigation bar and litigation firms get as big as they are … that network of repeat dealings, which allows for the building up of trust over time, doesn’t work so much any more,” he said.

When lawyers don’t have that foundation of trust, it creates an atmosphere in which mountains are made out of molehills, said Bundy. This, in turn, causes more stress on already-overworked lawyers, impedes the legal process, upsets judges and negatively affects clients.

“[Programs like Atlanta’s] put the element of familiarity back into litigation,” said Bundy. “By taking someone to lunch, spending an hour or two with them in a setting that isn’t totally focused on the case, you get more of a sense of them as a human being, of a shared background, and that breaks down the barriers of mistrust that are the causal factors in the current litigation climate in many big cities.”

But lawyers needn’t wait for their bar associations to hold a contest in their state – efforts like this are just as effective without a formal program. A thousand miles north in New Hampshire, plantiffs’ attorney Philip Waystack took the civility issue into his own hands with equally impressive results.

Don’t Wait For A Formal Program

In the midst of a seven-week trial last year, Waystack and his law partners invited their opponents to dinner at a house the plaintiffs’ team had rented in Laconia, N.H.

According to Waystack, all it took was a fine meal of salmon with lime sauce and teriyaki steak – all right, and several bottles of wine – to change the case from one of enormous hostility to one in which he recalls fondly the trial and his opposing counsel, even though he lost the case.

Waystack, who is partner in a three-lawyer firm in Colebrook, N.H., had filed a mass tort suit on behalf of health care workers sickened by latex gloves. There were five defendants – many were large health care companies such as Johnson & Johnson and Baxter – and each had a host of attorneys who descended on tiny Laconia, N.H., from such big cities as St. Paul, Boston, and Akron.

In the midst of the 31-day trial, Waystack’s former partner, Clare Hinkley, suggested they invite their adversaries for dinner. Many had been staying at motels and eating out every night, while Waystack and his team had settled into a rented house and ate home-cooked meals.

Waystack balked.

The case was intense from the beginning – with 95 depositions in three months – and in Waystack’s view, the out-of-state defense attorneys only adding to the problem. Several times he walked out of depositions to make clear the level of his dissatisfaction with their line of questioning.

“When I try cases in New Hampshire I try intense cases, but it doesn’t mean we have to act like idiots,” he said. “I think what happens is that lawyers [often] see themselves as gladiators. One of the defense lawyers wanted a document from me, so he subpoenaed me to their office. I never experienced that. That’s a flavor of their attitude.”

Waystack said it wasn’t unusual to have 25 defense attorneys present for the deposition of a single doctor.

“It was deposition by endurance,” he said. “I was really unable to form any kind of personal relationship with most of the defense lawyers because it was just this intense, gladiator attitude that permeated all the proceedings.”

So Waystack was skeptical when his partner suggested that they have the defense lawyers over to dinner.

“But I listened to her and she was right,” he admitted.

About eight of the defense attorneys showed up. The tension between the two sides dissolved almost immediately as several of the defense attorneys looked over Waystack’s shoulder as he prepared the salmon in lime sauce, firing off good-natured wisecracks.

“We didn’t talk a bit about law. We got to know each other. God knows how many bottles of wine we had,” Waystack said, laughing as he recalled it. “I’m making salmon with lime sauce, Clare’s boyfriend was making steak teriyaki and I’ve got two lawyers over my shoulder wanting to see every step.

“It was a terrific night. It really was a chance to get to know everybody,” he continued. “When you sit down and find out where someone grew up, where they went to school, they’re not just the enemy. They’re the enemy with a face and a life. You get to know and like them and it’s harder to continue that unreasonable, unnecessary, aggressive behavior in the courtroom.”

From that point on, the tone of the case changed, Waystack said. When issues came up they were easier to resolve, and the trial overall was a much more pleasant experience.

Goal Isn’t To Become Best Friends

Down South in Atlanta, Lynn Roberson says all the lawyers she has invited to lunch have gladly accepted. This year she dined with three opponents as part of the Take Your Adversary to Lunch program. She’d just won a trial against one, and the other two had been opponents more than once in the recent past. She didn’t have a particularly good relationship with any of them.

“I figured the point of it is not to go out to lunch with folks you enjoy and got along with,the point was to help develop a more professional relationship with people you might have had difficulty with,” she said.

The best lunch, according to Roberson, was with the plaintiff’s attorney in a parking lot violence case in which she represented the property owner. An earlier criminal case based on the same incident had generated an extensive file from the district attorney’s office.

When Roberson filed her motion for summary judgment she had her assistant list as possible trial exhibits about 100 items gathered as physical evidence in the course of the criminal case.

After reading her motion, the opposing counsel called Roberson, “screaming at me over the phone that he’d never seen any of these things,” and accusing her of withholding the information during two years of discovery. Roberson hung up on him because he was so irrational and repetitive.

Angry herself now, and ready to give that attorney a piece of her mind, Roberson marched off to her correspondence file to find the letter she’d assumed she’d written telling the opposing counsel about the DA’s file.

“I spent an hour going through a six-inch thick correspondence file to see if I had a piece of paper that documents that I had the file and he was welcome to come see it. I didn’t find it,” Roberson said. “But I found his letter to me saying that he had the file and I could come see it at his office.”

“Oh, I was pissed,” she continued. “So Monday morning is our hearing. I’m going into court and I’ve got his letter, and all weekend I was [planning] how I was going to tell the judge [how opposing counsel] was screaming and yelling about what a scum bag I was, and then throw this letter in his face.”

Then she thought better of it.

“I like to eat crow privately, not in front of the judge,” she explained.

So she approached opposing counsel and showed him the letter in private.

“Oh,” was his response, she recalled. “No apology, no nothing.”

Needless to say, this man was far from her favorite attorney. But a couple of months after the trial ended, she decided to invite him to lunch as part of the Atlanta bar’s civility program.

“He was gracious and accepted,” she said via e-mail. “I think having an official program in place makes it easy for someone to call and invite an adversary without it appearing to be ‘weakness,’ as it is part of an official program.”

Once they got together, Roberson and her opponent did talk about their most recent litigation, although not in detail. They didn’t argue the case to each other, but they did talk about witnesses and facts.

“We shared war stories on other cases we didn’t handle together, as well,” she said. “We talked about our families a bit and I think that helped ‘humanize’ us to each other.”

The two attorneys have had several dealings since their lunch – both at trial and on discovery in a long, ongoing case.

“We disagree about how we view the world, I think he pulls a few fast ones in depositions. I object, but we’ve managed to keep it professional and respectful,” Roberson said. “After our lunch, there seemed to be more trust. He didn’t assume right away that my motives were evil or ill considered, just different from the position he was taking. I know other lawyers have had difficulty dealing with him and he and I have gotten along fine. [Going to lunch] really changed our working relationship. It made it far more agreeable thereafter.”

All of her lunches with opponents have improved working relationships, but some of that probably has to do with Roberson’s friendly manner and willingness to smooth over misunderstandings early on.

“We forget that even though we represent clients we don’t have to stand in their shoes. To me that’s why [clients] hire a lawyer, because [they] don’t have objectivity,” she said.

Additional Benefits

Although the intent of the Atlanta bar’s program is to bring together lawyers who truly don’t get along, it can also be beneficial in cases where the lawyers themselves aren’t the problem.

In one recent case, Atlanta attorney David Schaeffer was defending another lawyer. He said his opponent had “a very difficult client.”

“Both sides were aggressive throughout, mainly because of our clients,” he said. “Just the normal courtesies that sometimes lawyers give to each other were being interfered with by the client. The client would not consent to things like extensions.”

Schaeffer always remembered, though, that it was the client who was making the case difficult, not the opposing counsel.

“His hands were tied by his client in many respects. That created some tension; it created extra motions that had to be filed, things like that. And so it just got to where it was simply a very hard-nosed piece of litigation where we always respected each other and understood where the other was coming from, but it was not a fun situation,” he said.

Although the case went to trial and two appeals, Schaeffer never had the chance to get to know the opposing counsel. When they went to lunch, they talked about their families, friends, hobbies, things they like to do – and the things they don’t get a chance to do because they just don’t have the time. They also discovered that Schaeffer coached his opponent’s son on his soccer team.

“We’ve been friends ever since,” he said. “He’s gotten more into mediation and I have used him as a mediator on a number of occasions.”

Schaeffer, a business and serious personal injury attorney in Atlanta and the incoming chair of the bar’s litigation section, said lunches have given him insight into past cases.

During a nursing home case four years ago, the lawyers went out for lunch following depositions. The relationship they forged made it possible for Schaeffer to invite one of the defense attorneys out for lunch when the case was over.

“I learned more about what the defense counsel were thinking as things got closer to trial and the issues they had with insurers,” he said. “I think that gave me a little bit more insight and may help in future negotiations.”

And beyond the immediate benefit to lawyers, is the more long-term effect improved civility will have on public opinion of the legal profession.

“I think there’s too much perception by the lay public that lawyers are worthless assholes anyway, and I think whatever we can do to counteract that is helpful and greatly appreciated by members of the bench,” said Roberson. “If you keep the judge happy, you’re going to be better off.”

Questions or comments can be directed to the features editor at: bibelle@lawyersweekly.com

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