Courtesy isn't what it used to be

I woke up cranky in my office in the Levison Towers, with the intercom telling me there was an attorney who wanted to talk with me. Yes, Gentle Reader, I was taking a mid afternoon nap. Before you judge me too harshly, I remind you that many great thinkers valued an afternoon nap, Thomas Jefferson and Benjamin Franklin among them. You may counter that many bums also sleep in the middle of the day, and I won't have a good defense. My couch is overstuffed and looks like it began life as a prop in a 70s movie with bad music. All I know is that it is comfy. Draw what conclusions you will.

In any event, I picked up the call. The other attorney began to berate me for refusing to withdraw a default motion and not allowing him to file "any pleading" he saw fit as a response. He said this would be professional courtesy, and he has always done it that way.

When a lawyer who has been to court less than the gravy stain on my tie - and some of my silk warriors are well marked - tells me that he has "always" done something in a particular manner, I have to smile. First, the data is statistically insignificant. Secondly, I have often done things a particular way, and that way turned out to be wrong. Tell me the law is against me, tell me that I am a fool, but don't try to amaze me with your months of experience. Grumpy me took that call. In retrospect, I should have gone back to sleep and let him go to voicemail. Or wherever.

The more disturbing part of the call was his argument that letting his client off the mat was a professional courtesy. This lawyer was clear that it was his client that needed the favor, not him. It dawned on me that his impudence was borne of ignorance, not malice.

Professional courtesy is a term that comes up often in lawyer discussions. Giving someone more time to do an act, especially to lawyers bound by the clock, is the usual reason for a request. If opposing counsel needs to take a vacation or is under a pile of work and needs more time, a professional courtesy - a favor - is almost always warranted.

It is disappointing when the favor of professional courtesy is not returned. I recently granted multiple extensions to an older government lawyer, the last so he could attend the birth of his grandchild. He returned the favor by making so many improper objections in the deposition we had been delaying that I have to seek court relief. I will let you know how that turns out.

Practicing law is hard enough without making life needlessly more difficult for other lawyers. I have extended courtesies to lawyers who needed them, and on at least one occasion, my client fired me as a result. I would still make the same decision. Professionalism is a distinction that lawyers should seek. It is the last separation we have from being business folk in bad suits. Some might call this a payment to the First National Bank of Karma and they would be right.

Helping my opponent's client whose bad behavior got us into a time crunch was not a professional courtesy. After all, it was the client who chose to hire my opponent at the last minute, well after an answer to my petition was due. Professional courtesy is a favor between professionals, not from one professional to a tardy litigant. The young lawyer's response to this news was that "I respectfully disagree."

"Respectfully disagree" is another term that is misunderstood in our profession. It is the close cousin to "with all due respect," a term that I learned, painfully, means no respect at all. And I think that you are an idiot. I used the latter term innocently enough to a federal judge who told me, in great detail, that my language was inappropriate. And why.

I declined to deliver that lecture to my opponent. I declined in part because I am not a federal judge. More pragmatically, I didn't know "how big an ol' boy he was" as we say back in Oklahoma. Instead, I told him we would indeed agree to disagree. Since I couldn't go back to sleep after that blood pressure spike, I went back to work. The day turned out more productive than I intended.

The next day I got a call from his associate, telling me that they would take me up on my offer to file an answer out of time. I told her I wouldn't object, and the day was saved. My nap, however, was forever ruined.

Under analysis is a nationally syndicated column of the Levison Group. Spencer Farris is the founding partner of The S.E. Farris Law Firm in St Louis, Missouri. He doesn't really take naps that often, but when he does, it is on his couch. Stay sleepy, my friends. Comments or criticisms about this column may be sent c/o this newspaper or directly to the Levison Group via email at

© 2015 Under Analysis L.L.C.

Published: Fri, Jun 12, 2015


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