My practice is now coming up on its two year anniversary in a few months and, despite that impending milestone I’m still doing a lot of learning by doing and picking up new lessons every day, sometimes from successes, sometimes from failures, sometimes just from being out there. Here are some reflections on a lesson of the third kind that I learned a while back…
It’s a refrain I had heard a thousand times from everyone I’d ever heard discuss the topic, “Whenever possible, if opposing counsel asks for a continuance because of a conflict, give it to them.” I’d internalized it, I’d bought into it, I’d made it my own. I was ready to go forth and be the lawyer who protected his client’s interests while maintaining civility and a shared professional respect among my legal brethren. So naturally, the first opportunity I had, I screwed it up.
In fairness to myself, I got the request on a Friday afternoon when our trial was set for Monday, and this request was the first communication I had received of any kind from opposing counsel. This was also a small claims case that had already taken too long. But none of that is why I denied the request and forced my counterpart to call in a covering attorney, I denied the request because I was afraid of what my client’s reaction would have been if I’d told him that I continued it. I was afraid of the client being unhappy with me for making a decision within the course of litigation that is clearly within the purview of the attorney to make. Basically, I chose pleasing the client in the short term over conducting litigation in the way I thought best. Not good.
Based on the title of this post, I think you can generally guess what comes next. After some weekend settlement talks we continue the case so we can try and wrap up a settlement. Well, that falls through, and it turns out I’ve got a conflict on the very day we rescheduled the trial to. Crap. So, hat in hand, excruciatingly self aware, I send the email asking for a continuance, too ashamed to make the call. Fortunately, opposing counsel had already learned the lesson I had ignored (he specifically told me he doesn’t hold grudges, awesome), and I got my continuance.
The take-away lesson here is clear: attorneys and clients both need to be flexible during the course of litigation and be prepared to show a little consideration to opposing counsel and even the opposing party. No matter what court you’re in (even in the Small Claims division), nothing ever moves particularly fast, and a short continuance more than likely won’t prejudice your claim. More importantly, disregarding your professional judgment because it may make your client upset is, at best, a good way to get other attorneys to dislike you, and at worst, a derogation of duty and a good way to end up in the office of Bar Counsel. So when the other side asks for that continuance, grant it gladly, because as John Lennon said, “Instant Karma’s gonna get you, Gonna knock you right on the head.”
