375 / 462
GAZETTE
NOVEMBER 1992
by Eamonn G. Hall
Does Aggressive Litigation
Produce the Best Result for
Your Client?
T\vo litigation lawyers in the
September, 1992 edition of the
Newsletter of the Corporate Counsel
Section of the New York Bar
Association (R.L. Haig and R.S.
Getman) have argued that aggressive
litigation does produce the best
result for a client - if done
responsibly and with good judgment.
The writers refer to graphic
descriptions of those at the receiving
end of aggressive litigation: such
persons have described aggressive
litigation in terms of "rambo-style",
"take-no-prisoners," "making the
opposition's ordeal as expensive and
tiring as possible", "obnoxious,"
"mean-spirited," "ad hominem,"
"petty obstructionism," "dirty
players," and "scorched earth." The
writers describe this as "hardball"
litigation.
Concrete examples that might occur
to a litigator are given such as
timing service of papers at the
proverbial eleventh hour, or at the
verge of an adversary's vacation,
holiday or birth of a child; refusing
to agree to extensions or
adjournments no matter how great
the adversary's need and how
reasonable the request; getting the
last word, burying the adversary in
lengthy interrogatories and document
requests, endless discovery and
generally acting belligerently.
Gerry Spence,
a famed New York
trial lawyer, is quoted as saying that
he comes to court to do battle, not
dance the minuet. A local bar
association president is quoted as
commenting that "litigation is war,
the lawyer is a gladiator, and the
object is to wipe out the other side."
A judge is quoted as considering the
relationship between settlement and
trial preparation in terms of "you
must pray for peace but prepare for
war".
The ethical rules, however, are
considered. Lawyers are required not
to circumvent disciplinary rules, be
dishonest or prejudice the
administration of justice.
The writers point to the
disadvantages
of aggressive
litigation. Clients hate aggressive
litigation which is designed to inflate
either the lawyer's ego or his wallet.
Sometimes the tactic is not worth
the gamble because of the tangible
(or intangible costs) to the client.
The lawyers stated that sometimes
aggressive litigation becomes a habit
which makes you more predictable -
thus weaker and easy to trap. A
lawyer who automatically refuses
requests for extensions of time and
never yields an iota on his position
on discovery will often be hoisted
" on his own petard" sooner or later.
Aggressive litigation, according to
the writers, may backfire in other
ways. One should be careful not to
"poison the well" of eventual
settlement of a case. Those who are
too aggressive only increase the
aggression of the opposing side.
The writers note there are some
defendants that are particularly
vulnerable to unfounded claims and
the suggestion is that they should
adopt a more aggressive stance on
occasions. The writers specify that a
municipal government or consumer
product manufacturer that litigates
too weakly or pays too readily in
response to specious personal injury
claims risk "drawing the attention of
litigants and their counsel like sharks
to a wounded whale". Lawyers talk
to one another. Lawyers know who
are tough and who are easy to
extract a settlement from and to beat
at trial. The writers argue that some
frequent defendants would benefit
mightily from sending a message to
the Bar that they are no longer easy
targets.
Litigation is like a war, state the
writers, but lawyers should remember
that most wars have more than one
battle and more than one objective
- and that the goals may shift
during the struggle.
The writers conclude by stating that
those involved in litigation must
think beyond today's case. In the
long run a good litigation lawyer
must consider his own reputation not
only for the sake of his effectiveness
in the next case for the same or
another client but for his own future
sake.
Lawbrief
submits that the litigation
lawyer should possess mental
toughness, physical endurance, a
certain modicum of intelligence and
powers of persuasion. However,
aggressive litigation lawyers of the
mean-spirited, obstructionist and
belligerent variety are often their
own worst enemies. Aggression of
the mean-spirited variety often
generates aggression in the adversary
who may adopt a "lets-fight-it-all-
the-way approach" and the client
may be the one who suffers
ultimately.
Telephone Tapping and
Undercover Surveillance did
not Breach Applicant's Rights
The European Court of Human
Rights has held unanimously in
Ludi
-v-
Switzerland
(judgment, June 15,
1992) that the surveillance of the
applicant's telephone
communications combined with the
intervention of an undercover agent
had not breached Article 8 of the
European Convention on Human
Rights.
351