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Working with Opposing Counsel in Getting Cases Moving Again

Be careful. Judges don’t want to be forced to settle squabbles between attorneys unnecessarily. And COVID-19 has made this more acute. But you also need to keep your cases moving forward.

Find the right balance between granting concessions with opposing counsel and filing for sanctions, if necessary. Too far in one direction and you face the scorn of a frustrated judge. And too far in the other direction stalls your cases.

We spoke to Texas attorney, Roger Borgelt, to understand this better. Roger has pending cases in both federal court and state court.

Following are some of the topics we discussed with Roger. You can jump to his answers by clicking on the links below.

• How are judges responding to squabbles between attorneys?
• What are legitimate reasons you see delays from opposing counsel?
• What do you do prior to pursuing sanctions from opposing counsel and How do you tell if the opposing counsel delays are illegitimate?
• Are you finding attorneys to be more accommodating in the wake of COVID-19?

How are judges responding to squabbles between attorneys?

QUESTION: One of the things that you mentioned was that judges don't want to come in and arbitrate squabbles between attorneys. Can you expand on this?

ANSWER: That measures into your thinking about whether you're actually going to file a motion for sanctions or not. You really have to have things lined up where behavior has been pretty egregious over a long period of time. And I think with COVID there are rational bases for there being issues with delays and responses. I think a judge is going to be even less likely to force the issue, given that. And given that there are some orders out there in some places that actually extend these deadlines.

I'm pleasantly surprised that in most cases that I'm working on we're able to work things out or we're in the process of working things out as things open up and people are starting to get access to their offices. Both attorneys and clients are getting access to their offices because, quite frankly, some attorney offices have been closed as well as the clients. Everything is not universally open yet. We've got varying kinds of orders around the state.

What are legitimate reasons you see delays from opposing counsel?

If the reasoning for why something is or is not happening makes sense. Like the office is locked and we can't get to the files, then yeah, you work with them on that and you figure out – when will you know the answer to that question? When will people have access to their files? When do we think, based on this timing, you can have the files searched and your discovery responses to me? You have to be rational about it. You can't make people go into an office that's locked and closed. If the material is not available electronically – it just is what it is.

On the other hand, if people are just not returning phone calls or not responding to emails, that can be a problem. My co-counsel and I are coworking a case here in Travis County, where we've been trying for several weeks to schedule a deposition. And our opposing counsel is just not responding at all to deposition scheduling. We've even offered to do it remotely by video.

In fact, there's a lot of remote video that's taking place. One of the benefits of remote video to the clients is saved expense and time. I had a hearing in Dallas last week which “occurred” in my conference room. This saved me and my client the considerable expense of me not having to go to the to the Dallas County Courthouse for that hearing, which only lasted about an hour or so. Hopefully some of the benefits of doing hearings remotely by video will survive the virus. At least I'm hoping that they do.

What do you do prior to pursuing sanctions from opposing counsel and How do you tell if the opposing counsel delays are illegitimate?

To the extent that somebody is not able to do what they were ordered to do due to impossibility, as I've said and I keep mentioning the example of the locked office, I'm not going to go for sanctions on something like that.

On the other hand, these people who keep using the virus as a justification, duck behind it or hide behind it, as an excuse not to do anything or not to communicate. For them, the approach pretty much has to be the same as it would be normally. You have to be reasonable and understanding, but also firm in terms of dealing with people on these matters.

If they have a rational explanation for why they're not doing something or can't do something, then they need to make that explanation known and not just hide out.

Are you finding attorneys to be more accommodating in the wake of COVID-19?

My relationships with some of my opposing counsel have, at least on the surface, improved as we try to work our way through this. I would also say that I have seen some instances of what I refer to as the “COVID excuse” – which is people who didn't want to do something, or respond to your discovery, or comply with your scheduling request, and say “oh, well, you know, it's because of the COVID”, and that's why I couldn't get back to you, or that's why it took me a week to respond to your e-mail, or whatever the excuse may be. You get a little bit of both. Given that you get a little bit of both, I approach it with a mixture of understanding and resolve.

Summary

COVID-19 has definitely had an effect on the judicial system and on the processing of both criminal and civil cases. There's no question about that. So, you need to be reasonable when you're dealing with opposing counsel, with clients, with the court system, in terms of your expectations. You also need to be firm in the sense that it's time to get going as we open up. And it's clear that the country, the state, the counties are opening up. It's time to be firm about getting folks going that have been hiding behind the virus, as I call it, to avoid being cooperative. Be reasonable but be firm.

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