Diary of a busy practitioner, juggling work and family somewhere in England. This week: troublesome opponents
I’m sad to find myself for the second time in six months having a moan about my opponents.
I have two matters on where my opponents are acting for executors, and in both cases drafted the will in dispute, who are being far from neutral.
The first is a solicitor who, as I say, prepared the will and is personally appointed as the executor. She is so affronted and outraged that I am challenging the will that she will not respond to my letter of claim, apart from on a side issue about whether or not I applied for copies of care home notes before I wrote the letter, and I don’t really know what that has at all to do with the price of fish. I am now having to issue proceedings despite my best efforts to encourage ADR.
On another matter an opponent has said they won’t be responding to my letter of claim because it doesn’t comply with the (voluntary) ACTAPs pre-action protocol. I wouldn’t mind, except it does. All they have done is increase costs and delay.
But my favourite recent moment was when I was on the telephone to a young whipper-snapper who, when he wouldn’t listen and I calmly repeated my question again, said 'you really must calm down, dear'.
Calm down, dear? CALM DOWN? I was perfectly calm, if assertive, before he said that but I was blooming livid afterward. 'Calm down, dear' is only a step away from 'you’re being hysterical' and 'hysterical' is half a skip away from 'hormonal'. If that lawyer was reprimanded recently for calling an opponent a plonker, what would the SRA make of such misogynistic language? Shall I ask them?
I accept that you will have the odd client who will simply ask you to be obstructive. I hope you are advising that odd client of the costs consequences of that approach. But I don’t think that this is what is happening with the examples above. I think, in each case, the beneficiaries would very much like to settle the matter, as would my clients.
So why the attitude? I think there are a number of reasons. I think the solicitor who is affronted at us challenging 'her' will is pretty stressed out. She is trying to get my letters off her desk as quickly as possible. She is lacking in confidence, for some reason, about her will and is therefore ultra-sensitive about it.
I think the whipper-snapper, oddly for a litigator, doesn’t know how to deal with confrontation. I have the same issue with my husband. He can’t discuss things in the quick, articulate way that I can, being a professional quick, articulate discusser of things. He gets flustered in the moment and walks off. That’s what the whipper-snapper did- he got flustered and wanted to stop the conversation rather than answer my question.
Just to reiterate, my tone was polite and calm throughout and 'do you mind if I get back to you on that one' would have been a totally acceptable answer. Instead, five minutes after the call I received an aggressive email from him - still not answering my question. It reminds me of the keyboard warriors on our local Facebook page who moan about neighbours rather than knocking on their doors and talking it through.
And the solicitor who has insisted my letter of claim isn’t good enough? I think they are deliberately being obstructive to increase their own costs.
I will almost always advise my clients to engage with ADR and approach a dispute constructively. Perhaps with an extremely frivolous claim I might advise a client not to throw too much at it, but even then responding to the claim comprehensively can prevent it going any further. And maybe mediation might be inappropriate is where there is a huge imbalance of power, but in such a case resolving the dispute efficiently with other types of ADR is surely crucial to prevent the vulnerable party having to deal with court proceedings.
So just a reminder: it has to be in your client’s best interests to bring about a resolution to a dispute quickly. Compromising is better than risking a judge on a bad day. This is not about you, and if it is slightly about you (because you drafted the will, for example) remember this is why we have insurance. You will not be a happy, fulfilled lawyer if you deliberately inflame disputes to increase your own costs. You also won’t get repeat business. If you can’t communicate effectively with another professional, maybe reconsider your career choices. But never underestimate what small circles we move in - if your opponent has a bad opinion of you as a lawyer, or a human being, they won’t be employing you any time soon.