How I Learned to Stop Worrying and Love Phone Calls

  • September 28, 2021
  • Malini Vijaykumar

A few months after I was called to the bar, I got a pretty contentious litigation file on my plate. The parties were at each other’s throats, but my client didn’t have the money to see it through to trial. I was asked to try and get the thing settled. So I wrote a three-page letter to opposing counsel, outlining all the ways in which they and their client were clearly and hopelessly wrong about the case, and offering an amount only slightly less than the value of the claim.

Opposing counsel came back a couple of days later with a letter of their own: thank you for your correspondence of X date, but you are wrong. No, we won’t spend time telling you why. No, we won’t make a counter-offer. Here are our available discovery dates.

Well, I thought, I tried. I walked into the partner’s office and told them that settlement efforts had been unsuccessful, and that I had discovery dates.

“That’s a shame, but it is what it is,” the partner said. “What did they say when you spoke to them?”

I told the partner about how my beautiful, thoroughly-written letter and the audacity of the other side’s brief non-starter response. What else was I supposed to do?

The partner sighed. “Just pick up the phone and give them a call.”

A what now? As much to save myself from the horror of a phone call as anything else, I asked if that would really change anything.

“Well, you won’t know unless you try, will you?”

I slumped back to my office and stared at the phone. I would rather have slogged through a 20-page research memo on bankruptcy law than had a real-time conversation with opposing counsel on a contentious file. Sighing, I dialled their number and prayed for voicemail.

The voicemail didn’t follow. What did follow, though, was the last thing I was expecting: a decent, only half-awkward conversation with a fellow colleague at the bar. Counsel was, rightly, put off by my pretty aggressive letter – but I learned what needed to happen for the other party to consider a settlement offer, how it needed to be characterized, what amounts were and weren’t on the table, and what risks we needed to be aware of. We didn’t settle the file in that call, but we did lay the groundwork for the settlement that came two months later.

Obviously I’m not going to pretend that all my calls with opposing counsel go that smoothly. But I learned something really valuable that day: that when it comes to settlement negotiations, I won’t know what a simple phone call might add unless I pick up the phone and try.

In that vein, here are some of the other things I’ve learned about these phone calls:

  1. Small Talk Isn’t That Bad, Actually

It might sound trite, but it turns out the person at the other end of the line is actually… a person. With Netflix preferences, after-work plans, and opinions on pizza toppings. No matter how much more senior that person is to me, I find they almost always appreciate being asked how their day is going and whether they had a nice weekend. It also helps to break the initial awkwardness of the conversation, and get us to the point where we feel more comfortable approaching the subject-matter of the dispute between our clients. And it reminds me that I am dealing with this counsel as a professional equal, despite the years or perhaps even decades separating our experiences at the bar.

  1. It’s a Conversation, Not a Moot

Turns out people don’t really love when you start a conversation by telling them all the things they’re wrong about. I used to think I had to convince opposing counsel I was right. Now I realize that’s not the point. Of course they won’t think I’m right (do I ever think they’re right?) but maybe, just maybe, we can come to some sort of agreement on the risks that exist for both our clients. If we can agree on that, maybe we can agree on how to resolve it. So now I try to focus the conversation on risks: where they lie for each of us, and what we can do with that knowledge.

  1. It’s a Conversation, Not a Pop Quiz

Probably my number-one source of anxiety about phone calls stemmed from this idea that I had to negotiate and settle my case in real-time while trying not to sound like an idiot. Of course that’s not true! A phone call is just a phone call. I don’t need to know whether my client would take a given offer, what their response would be, or even what the answer is to the other side’s version of the facts. I just have to be capable of listening to what the other person has to say, offering whatever information I have, and then taking it all back to my client afterwards for instructions. If I’m short on time or if the case is super complicated, I just have to remember that as long as I do those three things, the call isn’t a waste of time.

  1. There’s No Downside

Like that partner told me: you won’t know unless you try. There are plenty of times where my phone call with opposing counsel hasn’t gone my way – no one’s been convinced of anything and no settlement offer has been made or received. But there’s never been a single call I’ve had that’s been wasted effort. The more time I spend speaking with the other side, the more insight I get into where they’re coming from. Maybe I get to find out the gaps in both our versions of the case, as well as the psychological motivations lying behind the disagreement. Maybe all I manage to do is show the opposing counsel that I’m a friendly, reasonable human being. There can’t be a downside to that.

In conclusion – I know it’s easier to send that e-mail where every word has been proofread twice and the client’s explicitly blessed every part of the draft. But if there’s anything I’ve learned over my first few years of practice, it’s that we litigators are all just people trying to advise other people on the fights they’re having without having those people turn around and pick fights with us. It’s so much easier to move something forward to a potential resolution when we talk to each other. Which is why, if you see me on the other end of one of your files, you can bet I’ll be dialling your number to have a chat. Unless you want to call me first?

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