Dial before you file: The forgotten power of attorney phone calls

What do an unapologetically aggressive ^TM litigator and a cordial call with opposing counsel have in common? More than you might expect. If not already an arrow in your legal quiver, may I nominate...the telephone?

When wielded correctly, there are few things more potent--or more overlooked--than a quick call with an adversary. But for many reasons, some societal, some generational, talking on the phone elicits reactions from anxious glances to outright revulsion. Unpack it with me.

How'd we get here?

As an elder *sigh* millennial, I still remember summers writing letters to friends across the country. By those standards, a phone call (ignoring long-distance charges) was a much more expedient option. But the internet, accelerated by social media and the ubiquity of cell phones, gave us even more convenient, introvert-friendly ways to communicate. Emails, chat groups, messengers, texts.

And society has fully embraced these communications tools, to the detriment of the telephone. Research shows that the overwhelming majority of American households no longer have a landline and that people make and pick up about five calls a day--while sending on average upwards of 40 emails and 100 texts over the same period. The disparity is even more pronounced the younger the audience.

When I ask my associates to "reach out" to opposing counsel, I often have to specify I mean for them to call--lest I be copied on the inevitable email chain. And while I still feel the fear of being a young attorney calling an often more senior opposing attorney--afraid that I might unwittingly divulge some tidbit that dooms my case or find some other way to embarrass myself--I also can't help but feel the myriad lost opportunities from not taking a few minutes to speak.

Why the telephone and why now?

Let's face it, as hard-working as our jurists are, their calendars are overwhelmed. In many courts--state and federal, hearings on motions (if held at all) are set for nearly a year out. And once fully briefed and argued, it's not uncommon for a ruling to take just as long. So anything that can reduce that time or obviate the need for a motion at all is a godsend. Allow the telephone to do its divine work.

A trove of studies has shown more engagement, less rancor, greater chance of agreement, and increased efficiency, in general, when issues are handled by phone rather than email or text. Consider the discovery process: Why go through the trouble of drafting a slew of discovery when a couple of minutes speaking with opposing counsel can provide the answer or allow you to draft more targeted and effective discovery? I've had many cases where a conversation with opposing counsel educated me on what documents their client had and how they were kept. Or where opposing counsel agreed to share information informally--much faster than through traditional discovery--facilitating early resolution.

Underwater and need an extension or some other favor? Studies have shown you have a much better chance of avoiding a negative response on a call compared to another medium like email. I'm hard-pressed to recall an instance when opposing counsel has ever denied me an extension by phone. Not surprisingly, people find it harder to be mean or even unreasonable when they're not hiding behind a keyboard. An added bonus--it's harder for opposing counsel to dissemble or be evasive on a call too.

And as lawyers, while we may be adversaries from time to time, we are always professionals and officers of the court. So, perhaps, the added ease that a phone call provides is most important for building trust and connection with our colleagues. This, in turn, allows us to really listen to our opponents and work toward mutually beneficial outcomes--all while zealously advocating for our clients.

There's a reason that most courts require counsel to meet and confer at least by phone before filing almost every motion, such as all California state courts and the Central District of California. The courts favor fulsome conversations. For instance, the LASC Civility Guidelines advise that the call should be substantive, and "counsel should engage in more than a mere pro forma discussion of [the motion's] purpose in an effort to resolve the issue." Appendix 3.A(h). The Central District goes even further, stating these conferences of counsel are "preferably in person."

A parting thought: Don't get discouraged or disgruntled if opposing counsel doesn't pick up on the first, or second (or third or more) try; sends you directly to voicemail; or, gasp, screens your call entirely. Leave voicemails. Be persistent. You'll be glad you did. And, blanche at the thought, one day you may even speak in person.