An opposing counsel is a legal professional, lawyer or attorney who represents a party acting in opposition to another party in a legal dispute. The term “opposing” is defined as: To place opposite or against something In a lawsuit, you have litigants opposing one another and their respective attorneys will be opposing attorneys.
Overview. If one party to a case has filed a motion with the court, the other side can file an “opposition.” An “opposition” is a written statement explaining to the judge why the other side is not entitled to whatever he is asking for in his motion. It is your opportunity to oppose the other side's request.
Roberts Jr. is increasingly using the word “friend” to refer to opposing counsel in oral arguments, a term also picked up by the lawyers appearing before the court. In 2013, the word “friend” became the most common word for opposing counsel, overtaking “opponent,” the Wall Street Journal (sub.
Ultimately, it isn't uncommon for attorneys in the community to have a friendly relationship. Don't be afraid if you even see the attorneys partake in some light banter back and forth.
Criminal defendants may be represented by a public defender, a lawyer appointed by the court, or a private attorney hired by the defendant.
No California legal ethics rule expressly prohibits a non-lawyer client from contacting another party directly, although clients cannot be used as conduits for indirect prohibited contact from lawyers.
When addressing the Court, counsel should refer to opposing counsel as “my friend” and a Queen's Counsel as “my learned friend,” When referring to counsel who is associated with him/her, he/she should say “my friend or my learned friend (as the case may be) who is associated with me.” Page 2 In addressing witnesses, ...
By David L. Hudson Jr. Under the ABA Model Rules of Professional Conduct, attorneys can't represent clients if they have a marital or familial relationship with opposing counsel unless they get informed consent in writing from their client.
If your lawyer still does not respond, you can send him or her a letter explaining the communication problems. If at this point you do not hear anything from your lawyer, you should consult with a legal malpractice attorney.
In a nutshell, if opposing counsel isn't responding: Document your repeated efforts at contact, including your statement of the consequence of continued nonresponse. Wait a reasonable amount of time. To be safe, get a court order authorizing direct contact.
Legal malpractice is a type of negligence in which a lawyer does harm to his or her client. Typically, this concerns lawyers acting in their own interests, lawyers breaching their contract with the client, and, one of the most common cases of legal malpractice, is when lawyers fail to act on time for clients.
However, when practising law, lawyers can only provide legal assistance, advice, and counselling to their clients while an attorney can represent clients in court and initiate defendant prosecutions in addition to providing legal counsel and consultation.
There are many types of lawyers that rarely (if ever) go into court, as the scope of their work does not require it. These may include estate planning lawyers, labor lawyers, personal injury lawyers, and bankruptcy lawyers.
Council is the word for an advisory group or meeting; counsel is the word for advice, an individual giving advice or guidance, or the verb indicating such action. There is not a tried-and-true mnemonic to differentiate these words.
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Calm lawyers are usually the most efficient because they do not allow their emotions to becloud their sense of reasoning. Nothing upsets an opposing counsel more than a calm and collected lawyer.
One way opposing lawyers distract their opponents by filing incessant motions to frustrate a matter. Some lawyers are easily distracted by allowing every issue raised by an opposing lawyer to become a dispute. While it is essential to react to some motions, learn to ignore harmless ones.
Having the facts of your case on your fingertips will enable you to stay ahead of the opposing counsel. One tactic employed by difficult opposing lawyers is to distract you in every way possible. A lawyer who knows the facts of his case will not veer off course by joining issues with an opposing counsel on extraneous matters.
A difficult opposing counsel is every legal practitioner’s nightmare. Even judges dread the thought of presiding over matters involving a difficult lawyer. Their fears are understandable. Difficult lawyers seem to have a penchant for employing unethical tactics to win a case. According to some lawyers, dealing with a difficult opposing counsel is ...
Nothing upsets an opposing counsel more than a calm and collected lawyer. A relaxed lawyer who is not overwhelmed with emotion is less likely to make mistakes in his case.
To be proactive, lawyers must have a plan of action and anticipate the next move of the opposing counsel, just like in a chess game. By preempting the moves of the lawyer on the other side, you will avoid delays caused by your opponent’s delayed actions.
Some research and studies have shown that being assertive reduces your stress and helps you deal with difficult situations. Assertive lawyers are rarely intimidated and can succinctly make their points without insulting the other side.
In this high profile case, Zimmerman was charged with second degree murder for fatally shooting Trayvon Martin.
In light of these concerns, a party seeking to take the deposition of opposing counsel must prove its necessity by showing that: (1) no other means exist to obtain the information than to depose opposing counsel; (2) the information sought is relevant and non-privileged; and (3) the information is crucial to the preparation of the case.”.
Although it is clear that the Shelton test applies to trial counsel, it is not clear whether the Shelton test applies to non-trial counsel, i.e., outside counsel who assists in developing strategy, probate or trust administration counsel, or in-house counsel. For example, in Zimmerman, the court allowed the deposition of an attorney who conducted a telephone interview of a key witness in a criminal case. In this high profile case, Zimmerman was charged with second degree murder for fatally shooting Trayvon Martin. During interviews with police, Zimmerman asserted that he shot Martin in self-defense. Crump, an attorney retained by Martin’s family, conducted a telephone interview of a potentially crucial witness who allegedly was on the phone with Martin moments before his death. Crump made a recording of the interview, but the recording was incomplete and of very poor quality. The trial court denied Zimmerman’s request to depose Crump. In its order, the trial court found that Crump was “an opposing counsel” and that Zimmerman failed to meet the Shelton test. The appellate court reversed. The court reasoned, in part, that the fact that Crump represents Martin’s family does not make him “an opposing counsel” and Crump acknowledged in his affidavit that he was not acting as litigation counsel for either the defendant or the state. The court, citing Pamida, Inc. v. E.S. Originals, Inc., 281 F.3d 726 (8th Cir. 2002), held that the Shelton test applies to limit deposition questions of attorneys in only two instances: (1) when trial and/or litigation counsel are being deposed, and (2) when such questioning would expose litigation strategy in the pending case. See also United States v. Philip Morris, Inc., 209 F.R.D. 13, 17 (D.D.C. 2002) (concluding that the Shelton test did not apply when the proposed deponent attorneys were not litigation or trial counsel, the deponent attorneys were assigned non-litigation responsibilities, and the proposed deposition would not cover litigation strategies related to the case).
The trial court denied Zimmerman’s request to depose Crump. In its order, the trial court found that Crump was “an opposing counsel” and that Zimmerman failed to meet the Shelton test. The appellate court reversed.
During interviews with police, Zimmerman asserted that he shot Martin in self-defense. Crump, an attorney retained by Martin’s family, conducted a telephone interview of a potentially crucial witness who allegedly was on the phone with Martin moments before his death.
However, in Florida, taking the deposition of opposing counsel in a pending case is an extraordinary step which is rarely justified. Courts regard opposing counsel’s depositions unfavorably because they interfere with the attorney’s case preparation and risk disqualification of counsel who may be called as a witness.
As a pro se litigant, an attorney plays the role of both counsel and client. Therein lies the problem with Model Rule 4.2: does the restriction upon the attorney (as an attorney) restrict the pro se attorney (as a litigation party) from contacting an adverse party?
ABA rule 4.2 does not state specifically whether or not it applies to attorneys who are representing themselves. An attorney can argue that when they are a pro se litigant, they are the client and have the right to discuss matters with an adverse party. However, an attorney who is a pro se litigant is also the attorney representing themselves, and it can be argued that pursuant to Model Rule 4.2, the attorney is ethically prohibited from speaking with an adverse party represented by counsel without “consent of the other lawyer or is authorized to do so by law or a court order.” [2]
PBA Opinion 2017-200 found that when an attorney is represented by counsel, Rule 4.2 does not apply, reasoning that Rule 4.2 only applies when an attorney is acting in the role of representing a client (or themselves as a pro se litigant). PBA stated that: “Rule 4.2 is a “role rule” since by its terms it applies to lawyers only when they are representing clients. It does not apply to lawyers simply because they are lawyers.” [7] (We note that this seems somewhat at odds with the notion of protecting people from an attorney’s specialized skills).
[9] In determining that Rule 4.2 is an identity rule, these jurisdictions found that the legal system benefited from a policy preventing attorneys from using their specialized legal knowledge and skills to influence an adversary, even when both sides were represented by counsel.
However, an attorney who is a pro se litigant is also the attorney representing themselves, and it can be argued that pursuant to Model Rule 4.2, the attorney is ethically prohibited from speaking with an adverse party represented by counsel without “consent of the other lawyer or is authorized to do so by law or a court order.”.
New York, Hawaii, District of Columbia and Alaska have all come to the same conclusions as the PBA. [6]
A pro se lawyer represents himself or herself as a client . Therefore, the pro se lawyer is prohibited by the literal language of Rule 4.2 from communicating with his or her adversary without the prior consent of his or her adversary’s lawyer. This reading of Rule 4.2 is consistent with the majority of cases which have dealt with the rule and with all of the ethics opinions which have considered the issue.
I assume you are not in small claims court but in district court with discovery rights.
The other side's attorney does not have to respond to your emails or calls. If you want the other side's evidence you need to serve them with discovery requests. Hire an attorney. Most lay people are no match for an attorney--and you sound lost.
If an adequate time for discovery has passed, file a no evidence motion for summary judgment.
Shelton was a product liability action brought by parents of a teenager killed in an accident after the teenager’s vehicle rolled over. The plaintiffs noticed the deposition of Rita Burns, an attorney in AMC’s litigation department who was assigned to the litigation. AMC then moved for a protective order and to quash the deposition subpoena. 805 F.2d at 1325. The magistrate judge granted the motion for a protective order in part, but denied the motion to quash. When Burns was first deposed, she refused to answer a number of questions about the existence of various documents regarding the vehicle, basing her refusal on either the work product doctrine or the attorney-client privilege. 805 F.2d at 1324-25. After another deposition before the magistrate judge (where he overruled AMC’s objections and ordered Burns to answer but she refused) and a show-cause hearing, the district court entered a default judgment on liability against AMC as a sanction. Id. at 1325-26.
In Johnston, the defendants served deposition subpoenas on the plaintiffs’ lead counsel and a vice president and general counsel for the corporation to inquire regarding meetings they had attended with various defendants prior to the filing of the lawsuit. The Johnston court set forth an alternative to the Shelton analysis, a balancing test that placed the burden of proof on the plaintiffs seeking a protective order to quash the subpoenas. 130 F.R.D. at 352-53.
The protectionist approach emphasizes the role of counsel during litigation, and the disruption that a deposition of the opponent’s lawyer may create. The seminal case taking this approach is Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986).
In dicta, the Second Circuit in the Friedman matter commented at length on the proper analysis to be used in assessing the propriety of a deposition of opposing counsel , even though the appeal had become moot because the attorney agreed to testify before the opinion was issued. 350 F.3d at 66. The Second Circuit criticized the Shelton rule as too rigid, id., and emphasized that the deposition-discovery regime in the federal rules is “an extremely permissive one.” 350 F.3d at 69. The court urged a “flexible approach” to lawyer depositions, one in which the court must take into account the need to depose the lawyer, the lawyer’s role regarding the matter on which discovery is sought, the lawyer’s role in the litigation, the risk of encountering work-product and attorney-client privilege issues, and the extent of discovery already conducted. 350 F.3d at 72. Accord qad.inc, 132 F.R.D. at 495 (noting the discretion accorded to trial courts, the court rejected the Shelton approach as overbroad).
Neither the Federal Rules of Civil Procedure nor the Oregon Rules of Civil Procedure prohibit the deposition of the opposing party’s attorney. Fed. R. Civ. P. 26 and 30 (a); ORCP 36 and 39 A. Given civil procedure rules allowing liberal discovery, it is not unheard of for a party to assert that it must depose opposing counsel during the course of litigation. In that circumstance, the general rule of liberal discovery collides with the bedrock value of adversarial adjudication. Besides often creating controversy within the litigation, issuance of a subpoena to or notice of deposition of opposing counsel raises the specter of invasion of the attorney-client relationship and intrusion upon attorney work-product and trial preparation. This article discusses the two primary approaches courts have developed to analyze the propriety of a deposition of opposing counsel.
The Shelton test has been adopted by the Sixth Circuit. See Nationwide Mut. Ins. Co. v. Home Ins. Co., 278 F.3d 621, 628 (6th Cir. 2002). It also has been cited with approval by the Tenth and Fifth Circuits, but those circuits have used the broad discretion accorded to trial courts under Fed. R. Civ. P. 26 as the basis for affirming the decision of the district court. See Boughton v. Cotter Corp., 65 F.3d 823, 830-31 (10th Cir. 1995) (district court may exercise its discretion regarding discovery under Rule 26, regardless of whether the Shelton criteria are met); Nguyen v. Excel Corp., 197 F.3d 200, 208-09 (5th Cir. 1999) (deposition of opposing counsel permitted under Rule 26).
The best way to avoid this trap is to keep all communications with opposing counsel in a professional, arm’s length tone. Even if the other lawyer is a genuinely friendly person, emails showing an overly familiar, joking tone could be misconstrued by a judge or your client.
By setting a rule that your emails won’t go out for several minutes after you press “send,” you give yourself the chance to review its contents in case you missed an error. This simple tool can be a godsend for both your case and your career. If you have ever received a rude email from opposing counsel, it can be so tempting to fire back. This is when the “delay send” function of your email program can really save the day.
This is a simple tip, but it is one that can save you from costly mistakes. Never fill out the “To:” line of your email until you are absolutely , positively , ready to send it. This can prevent you from sending the email to the wrong person. More importantly, it can also prevent you from sending an email before it is ready to go.
Anyone involved in any part of the litigation process knows that communication with opposing counsel must be carefully monitored. With the potential for extreme emotions hovering over every interaction with an opposing law firm, legal professionals have to be exceptionally careful in their electronic communications.
The plaintiff’s lawyer is an opposing counsel to the defendant’s lawyer and vice-versa. Opposing lawyers have the duty to respect their professional code of conduct. Adopting good strategies can make dealings with opposing lawyers much easier.
An opposing counsel is a legal professional, lawyer or attorney who represents a party acting in opposition to another party in a legal dispute. The term “opposing” is defined as:
In a civil lawsuit, the opposing attorneys are those that represent the plaintiffs and the defendants. In a criminal lawsuit, the opposing counsel is the prosecutor vs defense attorney.
Call when the opposing counsel is not responding. Make sure you stay focused on your legal objectives. Don’t make broad assumptions about the other party’s litigation strategy. Your conduct with opposing lawyers may be different depending on the nature of the case and circumstances.
In a lawsuit, the opposing lawyers must exchange evidence with one another, handle depositions, exchange correspondence with one another and handle any other case logistics, negotiations or pleadings.
A lawyer in general, acting in opposition or not, must: Remain professional at all times. Respect the rules of professional conduct. Respect the other lawyers and parties in a lawsuit.
At the end of the day, every attorney or lawyer’s success will be driven by the person’s reputation and how others ( such as peers) will judge the person.