The scenario is as follows: You are an attorney for the plaintiff. The key attorney for the defendant has asked the court for a continuance to move the trial date in order to accommodate the birth of his first child. Given the length and location of the trial, the current scheduled date will likely overlap with his first-born’s birthday. Meanwhile, the defense has five equally qualified attorneys also working the case. So, is this a ploy by opposing counsel for more pre-trial preparation? Do you oppose the Motion?
The above describes actual events from the case Jayhawk Capital Management, LLC (Plaintiffs) v. LSB Industries, Inc. (Defendants). In this matter, the plaintiffs refused to agree to continue the trial setting, opposing the motion for a continuance. In their opinion, Bryan Erman, esquire, could find a flight after his son’s birth from Dallas to Kansas City to attend the trial as initially scheduled.
Attorneys swear by certain ethics before practicing law, and while emotions should be checked at the courtroom door, there is still room for common sense and common decency. As a firm, it is important to provide younger associates with an example of exactly what kind of attorney—no, professional—you expect them to be.
Moral grounds aside, there are plenty of pragmatic reasons to be an accommodating lawyer. Hell hath no fury like a judge’s scorn. This judge in this case began his ruling with the following derision:
“He who is his own lawyer has a fool for a client” is one of every lawyer’s favorite proverbs. Among the several reasons why this is undoubtedly true, is that lawyers are trained to handle disputes skillfully but without the emotional rancor that will mask the actual parties’ reason and good sense.  Regrettably, many attorneys lose sight of their role as professionals, and personalize the dispute; converting the parties’ disagreement into a lawyers’ spat. This is unfortunate, and unprofessional, but sadly not uncommon. Before the Court, however, is an uncommon example of this unhappy trend.”
After this embarrassing introduction, Judge Eric F. Melgren’s ruling then addressed and lampooned each of the plaintiff’s objections to the motion, making statements such as, “For reasons of good taste which should be (though, apparently, are not) too obvious to explain, the Court declines to accept Plaintiffs’ invitation to speculate on the time of conception of the Ermans’ child.”
And, “Further, Plaintiffs assert that there are currently five attorneys from two different firms on Defendants’ signature block. While the Court might be inclined to agree with Plaintiffs that this seems like a plethora of attorneys, it can’t help but note that, entered and active on behalf of Plaintiffs in this case, are also five attorneys, from three different firms; so perhaps Plaintiffs are illequipped to argue that Defendants have too many attorneys.”
There are many moments at trial or during settlement negotiations when a lawyer must play games, stay tough. But, this behavior should never be to the detriment of a person’s moral compass. Lawyers go to office dressed in pinstriped suits and power ties, so it’s only fitting they wear a personality to match. Therefore, this month, organize a CLE addressing the Model Rules of Professional Conduct as a refresher to both experienced and first-year associates alike.
It’s important to note that while stalling tactics are not uncommon in the practice of law, partners at your firm should take a few extra minutes to decide which legal strategies are worth the risk of public on-the-record ridicule, and which motions are best left unopposed.
“Certainly this judge is convinced of the importance of federal court, but he has always tried not to confuse what he does with who he is, nor to distort the priorities of his day job with his life’s role. Counsel are encouraged to order their priorities similarly. Defendants’ Motion is GRANTED. The Ermans are CONGRATULATED.”
To read the full ruling, see:
 “ . . . do as adversaries do in law, strive mightily, but eat and drink as friends.” Shakespeare, The Taming of the Shrew, Act 1, Scene 2.