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Time’s Up.
One of my favorite podcasts, “Cautionary Tales,” teaches listeners lessons they can learn from historical examples. Recently, the podcast conveyed a few examples of historical figures benefiting from taking no action when faced with problems. There is a natural tendency to do something when faced with problems, but often, action can do more harm than good. Lawyers also might be biased in favor of action over inaction in order to prove to clients that they are working hard and that seeking legal counsel was worth it. However, it is sometimes better to take no action in various legal situations.
Several years ago, I was at a mediation, and after hours of negotiations, it seemed as if the case was headed to a tenuous settlement. At that time, I did not want to say a single additional thing since I did not want to rock the boat and potentially upset the settlement. For some weird reason, another lawyer involved in the mediation just had to get one last comment in before the discussions concluded. Lawyers of course love to speak, and all I could do was roll my eyes as the lawyer began to make his point.
The lawyer made a statement that he thought would advance the position of a client, and (I guess) show the other side that they should accept the settlement given the merits of a particular defense. However, the statement greatly irritated the principals involved at the mediation, and the resolution veered of course. If that lawyer had just decided not to speak, the case likely would have settled, but the case ended up taking many additional months of costly litigation before finally resolving.
At another time in my career, a law firm at which I worked was defending a case that had been inactive for years after the court issued a ruling on a given legal issue. No one was really sure why the plaintiff’s lawyer had not prosecuted the case for years. Our best theories were that the lawyer lost track of his client or perhaps the lawyer just forgot about this case since the attorney likely had hundreds of files. It was also possible that the person responsible for the case at the other law firm left the shop so that notifications about the case were not getting to the right person.
Our position was to let sleeping dogs lie on the matter. From a defensive position, there seemed to be no downside to letting the case sit for a while, and this did not cost anything to the client. Moreover, if the case was pending for a certain time without any activity, possibly the matter would be administratively marked disposed by the court for lack of activity. If we tipped the plaintiff off that the case had no activity for a while, they might resume prosecution of the case and make it unlikely that a court would administratively dispose of the matter.
The client eventually moved a portfolio of work to a new law firm, including the matter that had been inactive for years. My firm was asked to complete a consent to change attorney form so that the new lawyer could be substituted into the case. We cautioned the client that filing this document could alert the other side to the fact that the case had been inactive for years, but the client still wanted to proceed with filing the form. This filing tipped the other side to the fact that this case had been inactive, and they resumed prosecuting. If the matter had been quiet for a little longer, the client possibly would have been better served by an administrative dismissal of the matter.
All told, lawyers and their clients sometimes need to fight the urge to act when facing legal issues. Sometimes inaction can yield far better results than action.
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothman.law.
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