lawyer settlement process legal-representation
Is it always a good idea to instruct opposing lawyers to speak directly?
<p>It is a common practice that opposing parties communicate via their lawyers rather than the parties communicating directly to each other.</p>
<p>Besides saving the parties' time, what are the benefits and what are the drawbacks associated with this practice?</p>
<p>Does it happen that the opposing parties would be unable to come to a settlement directly, but would be able to have that conversation between lawyers?</p>

<p>Just using an objective intermediary can produce settlements that parties can't reach in direct confrontation.  That's why <em>mediation</em> is a popular tool for resolving conflicts.</p>
<p>Using lawyers as mediators has some added benefits:</p>
<ol>
<li>Lawyers know the law and rules of litigation better than laymen and so they can tell their clients what the range of possible outcomes are, and when communicating with opposing counsel they both know what is realistic.</li>
<li>Lawyers are (at least in principle) <a href="https://professionalliabilitymatters.com/legal-malpractice/lying-during-settlement-negotiations/" rel="nofollow noreferrer">forbidden to lie in the course of their professional conduct</a>.</li>
</ol>
<p>I.e., using lawyers should reduce the amount of gaming involved in resolving a conflict.</p>
<p><strong>And if that's not reason enough to get opposing lawyers speaking directly:</strong> <a href="https://www.law.cornell.edu/wex/meet_and_confer" rel="nofollow noreferrer">Rules of litigation <em><strong>require</strong></em> opposing counsel to &quot;meet and confer&quot;</a> regarding many procedural issues.</p>
<p>A typical example is <a href="https://codes.findlaw.com/ca/code-of-civil-procedure/ccp-sect-2023-010/" rel="nofollow noreferrer">CCP §2023.010</a> which requires the court to sanction a party for &quot;<em>Failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery.</em>&quot;</p>
<p>The judicial system thinks it's <em>always</em> a good idea for opposing lawyers to speak directly because it can only reduce the burden on the public courts.  Lawyers are officers of the courts to which they have been admitted to practice, and so while their primary duty is to their clients, they also have an obligation to uphold the law and avoid misusing the courts.  <a href="https://www.americanbar.org/groups/litigation/committees/pretrial-practice-discovery/practice/2017/tips-on-meet-and-confer-conferences/" rel="nofollow noreferrer">Here's an essay published by the ABA</a> that further explains, &quot;cooperation represents the shortest, fastest, and least costly path to what the rules, as applied, ultimately would require the parties to do anyway.&quot;</p>
<p>From the perspective of the client, the only drawback to conference that I can think of is the theoretical risk that one lawyer will unnecessarily divulge some piece of information that the other party can exploit to its advantage.  Such a mistake would be grounds for a malpractice claim against the lawyer who committed it.  And if it is brought to the attention of a court overseeing the process then the court may take steps to mitigate the damage to the party so disadvantaged.  A common example is in criminal law where a judge will prohibit improper statements or evidence from being exposed to the jury.</p>

<blockquote>
<p>It is a common practice that opposing parties communicate via their
lawyers rather than the parties communicating directly to each other.</p>
<p>Besides saving the parties' time, what are the benefits and what are
the drawbacks associated with this practice?</p>
<p>Does it happen that the opposing parties would be unable to come to a
settlement directly, but would be able to have that conversation
between lawyers?</p>
</blockquote>
<p>Keep in mind that lawyers, in the U.S. at least, are not permitted to speak directly to the other party without the opposing lawyer's permission.</p>
<p>There are times when direct communications between parties ignoring the lawyers on both sides does take place, often, for example, when the parties are also family members. To conform to ethical rules, the parties can't just be conduits for their respective lawyers in these discussions.</p>
<p>Lawyer to lawyer communication is favored because it facilitates message discipline, because lawyers are better at speaking civilly about relevant matters to what needs to be discussed for the legal part of a dispute while clients often find it emotionally challenging to do so and digress into legally irrelevant matters that are interpersonally relevant, and to protect clients who are foolish about what should be kept secret or what negotiation terms should be reached from themselves.</p>

<p><a href="/questions/tagged/england-and-wales" class="post-tag" title="show questions tagged &#39;england-and-wales&#39;" aria-label="show questions tagged &#39;england-and-wales&#39;" rel="tag" aria-labelledby="england-and-wales-container">england-and-wales</a>, but much of this is broadly applicable I think as well.</p>
<hr />
<p>I'm guessing the answer is that the lawyers would tell you yes, but in fact is not necessarily the case that lay people can't settle among themselves. The one hypothetical benefit would be that they could communicate in a savvy way so as to not sabotage prospects of advantages at trial. But in my experience, many professional lawyers aren't always the best strategists anyway, and they often don't consider one's interests holistically, even in just the different legal facets of the situation, much less its non legal aspects.</p>
<p>However, certain things like the civil practice direction on pre action conduct are specified in civil procedure rules and one can be penalised for not following it properly later on if you and the other party fail to settle. In this sense it can be rather helpful to have a lawyer who is familiar with all these rules.</p>
