Where Toughness, Courtesy and Sanctions Meet

February 22nd, 2016

Famed lawyer and Noble Peace Prize winner Elihu Root once admonished, “About half the practice of a decent lawyer consists of telling clients that they are damned fools and should stop.” While the comment drips with the sort of condescension for which lawyers are infamous, there is still a key point to be embraced. People who suffer wrongs often react emotionally, and understandably so. A key part of the lawyer’s job is to provide dispassionate analysis, so that months later, when tempers have cooled, the client does not find itself embroiled in litigation it has come to regret.

A recent Virginia Supreme Court opinion tells the story of a case in point.

A lawyer filed a suit to enforce a construction client’s mechanic’s lien. One of the defendants was a large bank, and its bureaucracy delayed the delivery of the suit papers to its lawyers. By the time the bank’s lawyers first saw the suit, the deadline for filing a response was already upon them. They immediately called the lienor’s lawyer, to ask for an extension of the filing deadline.

A request for a filing extension will routinely be granted by a judge if the request is first made before the filing deadline has expired. Knowing this, lawyers routinely agree to brief extensions when requests are made before the deadlines pass, because failing to agree only causes a later court hearing that will almost certainly offer no help to the client. After agreeing to the extension, the lawyer may need to explain this to the client.

But in this case, the lienor’s lawyer did not simply agree to the extension. Instead, he asked his client for its opinion. The client, who lacked the experience needed to understand how failing to agree could backfire, decided to take the aggressive stance: no extension would be agreed to.

The bank’s lawyers responded by filing a motion and appearing in court to ask for the judge’s permission to file late. The lienor’s lawyer objected, but as expected, the judge granted the motion, so the bank got to file late.

The lienor’s refusal to extend the common courtesy earned it no advantage. Worse, the judge admonished the lienor’s lawyer for taking up the bank’s and the court’s time with the matter. The judge ordered the lienor’s lawyer to pay $1,200 to the bank to reimburse it for the lawyer fees it incurred in the unnecessary skirmish.

On appeal, the Virginia Supreme Court threw out the award, saying that while the agreement to extensions is a commonly observed courtesy, the refusal did not rise to the level of frivolous or meritless litigation, since no statute or rule had been violated.

Some might think the Supreme Court opinion affirmed the righteousness of the lienor client’s original position. But that would be wrong. The bank still got its extension. The case got delayed for a very long time, and the lienor’s lawyer had to suffer a tremendous imposition of time and expense, not to mention negative publicity, just to escape punishment.

Not getting paid for perfectly good work performed can leave a construction client understandably upset. Its lawyer should absolutely pursue the client’s rights vigorously and without apology.

But in this case, the client’s best interests would have been served by agreeing to the extension. Because the client had no way of knowing this, and because the very nature of the attorney-client relationship presupposes that the client needs the lawyer’s guidance on how to handle such matters, the lawyer’s abdication of responsibility for this decision was a mistake. And even though the monetary sanction ultimately got thrown out, the trial judge provided a reminder that courts expect lawyers to minimize needless additions to the burdens of litigation. Indeed, lawyers are required to exercise independent professional judgment, so deferring to a client is not necessarily a fail safe excuse.

By its very nature, litigation is not for the faint of heart. It is contentious, frustrating, and expensive. A key part of the lawyer’s role is to remain calm, to exercise sound judgment in deciding when something is worth fighting over and when it is not, and to lead the client down the path that serves it the best. Fighting over every niggling detail is not a show of toughness. It is an indulgence that hurts the client, with no offsetting benefits.

When choosing a lawyer for a litigation matter, a client should look at more than quoted hourly rates. Check lawyers’ reputations for sound judgment in handling cases. Lawyers with the same hourly rates can produce wildly different bills, depending on whether one is using sound judgment consistently while another may be tilting at every windmill. Make sure the lawyer you choose is not only capable, but judicious with your money.