Modern litigation: Minding the rat hole

In the to and fro of modern litigation, at the speed at which we practice these days, I occasionally get myself stuck in that devolving rat hole of acerbic email exchanges with opposing counsel that start to drift from the professional to the personal. I get my hackles up and my competitive juices start to flow (but not in right direction), and I step into that rat hole with my opposing counsel, my colleague. We go at it, back and forth, emails flying, email-response-email-response, back and forth, we fall into presuming bad faith on each other's part, questioning each other's motives, and painting each other personally with our respective client's litigation positions. We let our professional demeanors and calm dispositions slip into "oh yeah, well, take that" mode. It becomes an unprofessional, unproductive, condescending, rat hole of battling egos.

Frankly, most civil litigators are pretty good at the rat hole game, they can do the back-and-forth all day -- parsed words, pithy retorts, and ever-so-subtle comments implying bad faith and slyly underscoring the weak lawyering skills or lack of experience of your opponent. Litigators, trial lawyers -- we've all been there, or been tempted to go there. I have. And it's not good. It's a down-spiraling rat hole. And, in all instances, it's dangerous, not good for your client or their pocketbook, not good for your practice or career, and not good for your health.

The rat hole rarely, if ever, moves your case forward in a productive substantive way, and you will most always create email exchanges that look awful, if not downright juvenile, when laid bare before the court in a subsequent motion. In the heat of rat hole battle, you may put something in writing, without taking time to reflect on ramifications, that harms your client's position or glues you to a position that you don't want to be stuck to long-term. You may also ruin a professional relationship that you may need for an extension or some extra time two months later. The rat hole breeds grudges that demand retribution.

The rat hole is a terrible waste of your productive time and money, either yours if you don't bill for your rat hole time or your client's, if you do.

If you are a frequent, habitual rat-holer, word will get out. It will hurt your practice and career. Your reputation will suffer. Your brand will tarnish. Your opponents will be wary of you, not because you're a great lawyer, but because you cannot be trusted to practice civilly and professionally. And because litigating in the rat hole with you is just awful. Colleagues will stop referring you clients because they don't want to tarnish their reputations by exposing their clients and referrals to your rat hole-ness. Attorneys talk. Word gets out. As a rat hole-r, you will surely become a frequent topic of such talk. And that's not good.

Unless you by nature enjoy drama, the rat hole is just not good for your well-being and health. Its profoundly negative. You usually get attacked personally, your skills and experience get impliedly, if not expressly, questioned. That's not fun. And it is wholly unproductive. That pithy, well-constructed attack sentence may make you feel good when you click and send. But it's effects are ephemeral at best. There will be a response, and you will counter. Everyone must have the last word in the rat hole.

The rat hole, it's just not a good place.

So avoid it. Don't step in the hole. Take a breath, take a walk, reflect a few extra more minutes before you send that nasty email or respond to the nasty one you just got. Is it necessary? Is it worth it? Does it further your client's cause? The sharp, well-landed, punch or counterpunch may feel good at the moment, but.... really? Keep on steady ground, fight hard, go at it, but don't rat hole.

If you slip, step in, start to get sucked down into the rat hole -- top. Just stop. Climb out. Pick up the phone. Email, text, whatever. Contact your opponent, your colleague. And simply, forthrightly, apologize for your tone and conduct, for your rat hole-ness, reset your relationship as best you can, and go back to fighting for your client, hard, but on substance, on procedure, and on the law and the facts, on the steady ground of competence and professionalism. If an apology for your rat hole-ness is not in the cards, OK, just stop, move on, and work to rebuild your relationship with counsel with words and deeds going forward. But either way, really, stop and climb out! It's just that simple. And, I assure you, in most every instance, your opponent will want to climb out of that hole too. That has been my experience from my few trips to, and climbs back out of, the hole. Because, except for those habitual hole-rs, and we all know who they are, nobody really likes the rat hole!

And if your opponent, no matter your professional overtures, words and deeds, wants to stay in the hole with the rats, let them. Just don't jump back in yourself. Bottom line, in litigation, avoid the rat hole! It's not good for your client, or for you.