Yes, the title of this blog entry is meant to evoke the well known Passover saying, “Why is this night different from all other nights?” It came to mind when I was recently working with an adversary on a matter when I called to his attention the fact that his client had reneged on her own prior proposals that my client had already accepted. Generally speaking, reneging on an agreed upon proposal is unreasonable, if not bad faith misconduct. Reneging on one’s own prior proposals is even worse. When I challenged the adversary as to the reasonableness of his client’s conduct, his response was, “I’m not going to stop this client from doing what she wants to do.” In other words, despite acknowledging his client’s own wrongdoing, he was facilitating her behavior by treating her as a client that is “different from all other clients.”
Now, truth be told, all clients are different from one another. Each client has his or her own set of facts, emotions, and the like, requiring the representation of each client to be tailored to that very person and that very case. On the other hand, encouraging a client to engage in this type of litigation-based conduct is questionable. Notably, since there are 4 different answers to the Passover question I refer to above, I have heard at least 4 other variations in the past to justify such conduct:
1. “In all other situations, your client has done wrong, too” – Essentially, the “two wrongs make a right” argument. In a recent discussion with an adversary about Christmas parenting time, I was told that the other party was being reasonable by reneging on her previously proposed Christmas parenting time offer because my client was not agreeable to a prior holiday parenting time situation. This sort of response, however, not only prevents a resolution of the issue, but it may result in a costly litigation that ultimately serves no one.
2. “Out of all of the other cases I have ever done, there has never been one like this” – In other words, the adversary’s argument is that this particular case is so beyond different that anything his client does and says is acceptable, no matter how unreasonable it would portray in any other case. Judges, experts, mediators, parenting coordinators, and attorneys all rely on established cases and accepted norms in determining what is a reasonable or unreasonable form of litigant conduct. Hearing an adversary dip into this bag of “previously used lines in other cases” also, serves no one.
3. “My client is being completely unreasonable, but I have no choice but to go with what they want” – When I hear an attorney make such an assertion, it not only confirms my client’s own sentiment as to how an adverse party has been, but also provides a glimpse into whether a case will settle, or whether such unreasonableness will carry the matter through a potentially costly and lengthy trial.
4. “Feel free to file a motion if you don’t like it” – Daring the other party to spend thousands of dollars in counsel fees is less a “dare” and more an implied threat, especially when that threat is being made against the financially inferior party.
Ultimately, no matter how different each case may be, there is conduct that can generally be deemed reasonable and conduct that can be deemed unreasonable. Parsing out when a litigant’s unreasonable, if not bad faith conduct becomes acceptable is not only a difficult line to tread, but can also result in a heated litigation that inures to no one’s benefit when all is said and done.