The Principles of Meeting and Conferring
In this New York Law Journal article, partner Vanessa Barsanti polled lawyers for their biggest pieces of advice regarding meet-and-confer strategy, as well as discussed lessons she has learned along the way.
Let’s face it, lawyers aren’t traditionally considered the warmest bunch. Litigators are hired to be advocates for their clients and litigation is, at its core, an adversarial system. Almost every case will involve disputes with opposing counsel, and resolution of these disputes can sometimes be achieved through successful meet and confer efforts. But often you don’t need to go guns blazing into every meet and confer in order to achieve the best result for your client.
So how can you achieve good outcomes in your meet and confer while keeping the temperature of the conversation cool? To answer this question, I polled a few lawyers for their biggest pieces of advice regarding meet-and-confer strategy and added a few things I’ve also learned along the way. No two matters are the same, and each meet and confer is likewise unique, but these are some overarching principles that apply to the majority of situations.
Don’t Start With Defeat
These days many courts require opposing parties to meet and confer before bringing a dispute to the court’s attention. It seems obvious that this rule exists to urge the parties to find a compromise prior to burdening the court with the dispute. Yet most of us have been on a call or email with opposing counsel where the conversation begins with some version of “I know we won’t be able to reach an agreement here. We’re just doing this so we can certify to the court that we discussed as obligated.”
It should not surprise anyone that this opening salvo does not inspire cooperation, but rather tends to put the other side on the defensive immediately. There are times where you will know with near certainty that you aren’t going to reach an acceptable compromise. But failure to explore the possibilities is often a disservice to your client, and a good way to anger the court. Even where you face skepticism that an agreement can be reached, consider approaching the conversation with more of an invitation for engagement. Something like, “I know we are very far apart in our positions, but I wanted to explore whether there is any opportunity to resolve the situation, even if in part to at least narrow the dispute.” This open invitation is much more likely to meaningfully engage your opposition. Every once in awhile I am surprised by what opposing counsel is willing to do even where it seemed like the parties were at a complete impasse. On the other hand, know when it is time to call it. If you and your opposing counsel are just repeating the same thing without making any headway, it’s OK to thank them for their time and note that you’ll need to seek court intervention.
Come With a Proposal
Do your homework. This is the biggest piece of advice from my colleague Christa Cottrell, a seasoned and well-recognized trial lawyer. Not only should you know the issue backwards and forwards, but a productive discussion benefits from parties that come to the table with a proposal rather than arriving empty-handed. Provide specific details about what your proposed compromise position entails. When discussing search parameters, know the custodians, terms, relevant timeframe, etc. that your client is willing to provide. When talking about motions in limine, have the clear contours of what you are proposing be excluded ready for discussion. The list goes on.
This practice not only helps provoke meaningful conversation between the parties, but is also good advocacy for your client in that you get to set the stage for negotiations. However, don’t panic if something comes up that you weren’t expecting. If you’re not authorized to accept a certain position then just be clear that you’ll consider it with your team and/or client and get back to opposing counsel.
As another colleague of mine and a leading antitrust practitioner, Dan Laytin, recommends, don’t be afraid to empower the team member with the most expertise on the particular issue to lead the conference. There is nothing wrong with delegating to those who know the material best. You can always participate as their back up.
Listen—Don’t Just Wait to Talk
By the time a meet and confer is required, the parties have likely already exchanged significant written correspondence on the issue in dispute. In fact, Magistrate Judge Karen Roby Wells, who has been serving in the U.S. District Court for the Eastern District of Louisiana for over 20 years recommends this practice, noting that written exchanges preceding the meet and confer can be a “useful template for the negotiation process.” If you’ve followed Judge Roby’s advice, then you aren’t working from a blank slate and understand at least the general basis for the other side’s position. Still, it is important to engage in active listening when the other side is speaking.
This doesn’t mean that you should simply sit in the meet and confer without engaging. It means quite the opposite—listen so that you can engage with what opposing counsel is saying. If you are too busy just waiting for your turn to speak, or worse—interrupting—you may miss important information that can help move the needle. For example, if opposing counsel is requesting the deposition of your client’s chief financial officer (CFO) because they say they need information regarding an audit that was performed, your immediate reaction might be an absolute no the instant you hear CFO. Maybe that person is too high up in the company and the client does not want to bother them, maybe it’s the close of the financial year and this will distract too much from ongoing business activities, etc. But if you were actively listening, what you would have heard was that the other side isn’t necessarily interested in that person. They’re interested in an issue—the audit. An active listener would engage with this, and if you agreed the topic was fair game, a response could sound something like “I understand you are looking for information regarding the audit. I don’t think the right person for that is the President, however, I think we could offer you a different witness.”
Don’t be afraid to paraphrase back your understanding of what the other side is saying, not only to ensure understanding, but also as a powerful signal that you really are listening and trying to understand their position. The more people feel heard, the less frustrated they tend to feel and the more they are willing to work towards compromise.
Trust but Verify
So, you followed this advice and got through your meet and confer; maybe even made some headway on the dispute. Lauren Akers, who specializes in mass tort litigation on the other side of the v. from this author, cautions that even after having a successful meet and confer you may want to consider “drafting an email summarizing the substance to reduce the risk of confusion or potential misunderstandings later down the road.” If you didn’t discuss all of the issues, consider including items for follow up, which party is responsible for providing outstanding information, and a provide a timeframe in which those items are expected to be completed. A comprehensive note creates a record about the agreements that were reached and provides opportunity for any correction or clarification required. If you ever get to the point of briefing the dispute, this method provides documented evidence so the parties can avoid a “he said she said” argument in front of the court.
Ultimately there is no one size fits all when it comes to your case and client needs. There are times in which drawing firm lines are required. But it is my experience that generally following these pointers can mean meet and confers that don’t leave everybody, including you, frustrated and angry, less time briefing unnecessary disputes, and most importantly, better results for your client.
