From the Multnomah Lawyer: Ask the Expert - Difficult Opposing Counsel

Dear Expert,
I have been dealing with an opposing counsel who does not return my phone calls, emails, or correspondence. Or, if they do, it is late in the evening, which is not much help. I need to get long outstanding documents and start scheduling depositions. Help!
-Ignored and Annoyed

Dear Ignored,
Although clients might be shocked at how some attorneys respond to the other side, these sorts of events do happen. When I encounter these lawyers (and sometimes even pro se litigants), I try to keep a reasonable mind about what might be driving their apparent indifference to this case. Reach out to other attorneys to see if they have had similar issues with this person, or if they are currently involved in a case that is taking the opposing counsel’s time away from your matter. However, I still follow a general plan of attack:

Document. Document. Document. Keep a list of all attempted phone calls, and document in a follow-up phone call. If you do by chance or perseverance get them on the phone, try to establish the timelines of which you will expect discovery. Follow up with a confirming letter or email and keep track of all agreed deadlines.

Be mindful of court and case deadlines to make sure that this is not an attempt to delay the case or trial. Try not to let these issues go on for too long before ratcheting up. If it takes an outreach effort each day, sometimes that may have to happen. Be careful not to get in the trap of just calling, leaving a voice message, and not getting a response. Vary your methods of outreach with a few phone calls, a letter, and an email. Be mindful not to do it all at once and try not to give the appearance that you are trying to harass anyone. If you are not getting a response, then set reasonable deadlines for a response.

If final steps are in order, be stern but also courteous. If you are going to send a notice of deposition after not hearing back on scheduling, think about a cover letter that says the date is also reasonably flexible, and provide additional days you are available and would be willing to accommodate the party’s schedule.

Before conferring on a motion to compel or even filing a motion, consider if it might motivate the other side if you send them a courtesy draft and noting the date you will file your motion if you cannot confer and resolve the issues.

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