I speak to solicitors who practice in Newcastle, Wollongong and Melbourne and they tell me they can call their opponents and discuss their respective matters. All communication between lawyers, doesn’t always have to be reduced to formal letter or emails.
I hear from family lawyers in Sydney, that the usual practice when it comes to communication, between family lawyers in Sydney is via email (’email wars‘) formal letters (50 paces with 50 letters in hand‘), otherwise, there is the possibility that your opponent may ‘verbal’ you, which creates mistrust between practitioners. If this happens, your opponent may put your informal conversations on affidavit and/or misrepresent your conversation in future formal correspondence. Its even been said that some barristers recommend ‘verbaling‘ as a tactic.
What is your practice? How’s ‘verbaling’ working for you and your clients? Getting better outcomes as a result? Do you have a happier, less stressful work life by ‘verbaling’? Do you have better, stronger, more productive professional relationships due to your ‘verbaling’? How is it affecting your reputation?
I don’t want to sound disrespectful by saying this simple truth, however, it must always be kept in mind when we are dealing with our opponents , they are under instructions, as are we. Therefore, we have facts from our respective clients (its our clients dispute) both lawyers have to manage their clients perspective, pursuant to different instructions.
Our job as lawyers, is to resolve the often highly emotional conflict between our respective clients in the most timely, cost effective, honest, trustworthy, skilled, professional manner that can be garnered in an effort to achieve the best possible outcomes for our clients.
How can we improve the situation, to make it our usual practice to pick up the phone, when necessary or even as a course of practice to talk to our opponent (at least once) :-) , and have professional conversations with our colleague/opponent about a matter, without fear of being ‘verbaled’? Heres 11 tips to avoid ‘verbaling’ or being ‘verbaled’:
- Our opponents do not ‘own‘ the dispute, they are the professionals engaged to resolve the conflict. Don’t treat professional opponents as the ‘enemy‘ rather as colleagues, worthy of respect.
- Don’t be aggressive with your opponent on the telephone, which would include telling them how bad their case is. If they are on top of their case, the lawyer will know the strength (or otherwise) of their case.
- Don’t tell your opponent how they should run their case (X,Y, Z will work, A,B, C will not work), they are under instructions, like you, and are bound to work within those instructions and they have to use their professional judgment pursuant to their instructions.
- If you are verbaled in a misrepresentation by your opponent following an informal conversation or email/letter, address the misrepresentation with your opponent immediately and correct the ‘record’, via formal methods.
- If you want to have a sterling reputation as a trustworthy, honest lawyer, make a conscious decision; DO NOT verbal your professional colleagues who are your opponents.
- Try it, change your practice, call your colleague/opponent at least once during the course of the matter to have a friendly conversation about the matter, with a friendly, collaborative tone and focus. If it backfires and you are ‘verbaled’, you’ll be happy with your efforts, as your integrity remains intact, and your reputation as a collaborative, trustworthy lawyer, will become known. You will then know who to trust and who not to trust. Other lawyers will also become aware of your willingness to engage in informal ‘phone conversations’ (where necessary and as a matter of course) and will be grateful they can rely upon you, not to verbal them whilst progressing the matter.
- If you are concerned or have a feeling, you may be ‘verbaled’ following a telephone conversation with an opponent/colleague (or they have a reputation as a ‘verbaler’), write a brief contemporaneous email or letter setting out the prior conversation.
- Act and conduct yourself in practice in a way that you would like to work with. You can’t control how others act or conduct themselves, but you can start change, albeit slowly, in what you wish to see and deal with, by exhibiting truth, integrity and honesty yourself.
- Before verbaling, as yourself: is it kind? Is it necessary? Is it true?
- If your feathers are ruffled by a conversation with an opponent, take a moment before you engage in a knee jerk reaction, like ‘verbaling’, breathe deeply and make a mental note of whether your reactions are emotional or professional; are they best for your clients case or conflict resolution.
- To get some perspective, zoom out and try and see the situation from a neutral position. Are you really upset about the issues in your clients case, the aggressive nature of your opponent on the phone, your inability to negotiate with the other side on the phone (for various reasons) or is there some other unrelated reason that makes you verbal your opponents. Address the core issues, which may mean engaging in assertive communication with your opponent. Articulate a complaint about a specific behaviour of your opponent and express your feelings in a way that is clear, direct and appropriate.
‘Verbaling’ your opponent will never improve the situation, it will add fuel to the fire. Base your interactions and professional conduct, on mutual respect. Be open and flexible. Listen and really hear your opponent. Ask questions to gather information that will be clarifying. Look for common ground. Start with a goal acceptable to all parties and then work backwards. Genuinely consider the other parties point of view and let them talk, they will run out of steam. Validate other parties feelings and perspective. If you are wrong, readily admit it and take responsibility. Lastly, if the telephone call turns verbally abusive or you are later ‘verbaled’ put a stop to both scenarios immediately, set boundaries.
If you require a family law barrister and mediator who bases her professional practices on the above 11 tips, contact Louise on (02) 9336 5399 or firstname.lastname@example.org
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