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Delay Tactics to Starve Out an Opponent

Posted By Colleen Glatfelter, Monday, June 26, 2017

By Tara Muller, Muller Law Firm


Nobody says lawyering is easy.  We must keep abreast of the ever-changing laws; abide by nuanced procedural rules (varying from county to county); fulfill myriad ethical responsibilities to our clients; and precisely reconcile the blasted trust account.  Wouldn’t it be fun if we also owed duties to third parties?  You guessed it – we do.    

 

Rule of Professional Conduct 4.4(a) imposes a duty to respect the rights of third parties: “In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third party…” (emphasis added) Also, lawyers must make “reasonable efforts to expedite litigation…” (Rule of Professional Conduct 3.2) Embarrassing or burdening a third party?  That’s a no-brainer covered in every kindergarten anti-bullying campaign. 

 

However, the more nuanced tactic of litigation delay, at least in my experience, sadly has become commonplace, especially in unbalanced situations involving a low-income party facing off against a deep pocket.  Consider the drastically different effect a 30-day extension has on a multi-national corporation versus on a struggling start-up company or an injured worker awaiting trial.  For some vulnerable parties, procedural delays devastate.

 

Understandably, many experienced litigators thrive on a fighting mentality and recommend aggressively using any available tactic to win.  Zealously representing a client, though, means using every available legal and ethical means.  The approach of requesting unnecessary extensions solely to starve out an opponent, while perhaps ubiquitous, is treated no differently under the Rules of Professional Conduct than embarrassing an opponent by bullying.  Before filing that next motion for extension, ask yourself if you really need more time, or if you are just stuffing your opponent into a locker. 

 

Tara Muller is an attorney-mediator and legal writer. She can be reached at tara@mullerlawfirm.com.

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 *Any opinion or views expressed in blogs posted on this site are those of the identified author and not the Committee as a whole

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