Working Effectively with Opposing Counsel: Resonance in the Practice of Law, Part Two

Resonance in the Practice of Law, Part Two: Opposing Counsel

The relationship with opposing counsel is one of the most important working relationships in litigation.

It is also one of the easiest to misunderstand.

Opposing counsel is not our ally in the ordinary sense. They may be advancing a position we consider unfair, unrealistic, poorly supported, or directly harmful to our client’s interests.

But opposing counsel is still part of the functioning of the file. How counsel communicate, narrow issues, exchange information, schedule steps, and deal with practical problems can affect the cost, speed, and quality of the process.

It should not be romanticized. But it should not be ignored.

Collaborative Law and the Value of Process

Collaborative family law has become increasingly prominent. In broad terms, collaborative law is a process where, if the matter proceeds to litigation, the collaborative lawyers withdraw, and the parties must retain new counsel.

That structure changes the incentives. The lawyers are not preparing for litigation; they are committed to the negotiation process itself. The purpose is to create space for disclosure, discussion, problem-solving, and resolution without the constant gravitational pull of litigation.

I am not an accredited collaborative lawyer. I am willing to work collaboratively and often prefer to do so where the file permits it. But I also prefer to preserve the option of going to court when I believe that tool is necessary. But I can see that collaborative lawyers are onto something important.

They recognize that negotiation is not usually a single event. It is repeated and iterative. It develops over time, and a better understanding of the real dispute begins to emerge.

Not Every File Permits the Same Process

In practice, not every file can sustain the same number of attempts. Some files have time pressure. Some have urgent parenting concerns. Some involve major financial stress. Some involve a practical power imbalance that makes protracted negotiation very difficult.

For example, if a child is exclusively in the care of one parent against the wishes of the other, the parent without care may not experience the situation as a neutral negotiation. They may experience every passing day as a deepening status quo. If one party is under significant financial pressure, delay may not feel like process. It may feel like leverage. In these circumstances, it can be unrealistic to speak as though the parties merely need more time to talk.

But even then, the relationship between counsel matters. Perhaps especially then.

When urgent issues arise, counsel often have to work within tension. One side may see the matter as intolerable. The other may believe they are acting reasonably or protectively. Each lawyer has instructions. Each lawyer has a client who expects advocacy. Each lawyer may believe that the other side is missing something important.

That is precisely when professionalism has value.

The point is not to pretend the conflict is smaller than it is. The point is to deal with the conflict in a way that keeps the file moving toward a decision, a resolution, or at least a clearer understanding of what must be decided.

Negotiation Requires Room to Be Heard

A useful negotiated process gives the other side room to forcefully present its case.

That does not mean accepting the case. It does not mean agreeing with the tone, the assumptions, or the requested outcome. It means allowing enough space for the other side’s position to be articulated so that it can be understood, answered, narrowed, or rejected on proper grounds.

Many disputes are made worse by premature escalation. A party sends a letter. The other side hears accusation rather than concern. A position is stated with an insinuation that is rejected emphatically by the client. A factual claim is disputed. A tone is taken. The response becomes sharper. Before long, the parties are no longer only arguing about the issue. They are arguing about the way the issue was framed.

Opposing counsel can either intensify that dynamic or help manage it.

Sometimes the best response is not to match tone with tone. It is to separate the accusation from the issue. It is to say, in substance: we do not accept that characterization, but we understand the issue being; here is our client’s position; here is the information required; here is a possible path forward.

That kind of response does not concede anything. It can be firm and protective of the client. But it also keeps the discussion from collapsing into pure reaction.

Litigation Also Has a Rhythm

Even in litigation, there is an ebb and flow to the relationship between counsel.

Reasonable adjournments should usually be granted. Reasonable accommodation should usually be given. Counsel should not manufacture difficulty for its own sake. But the ability to grant accommodation depends on the request, the history of the file, and the client’s actual situation.

A request for more time may be perfectly reasonable in one case and deeply prejudicial in another. If the matter involves a time-sensitive issue, delay may not be neutral. It may change the reality on the ground. In those situations, counsel may need to play what looks like hardball.

Understanding this helps. Lawyers should not assume that firmness is personal, or that urgency is theatre. There are times when opposing counsel is pressing because their client’s circumstances require it. There are also times when we must press for the same reason.

The question is whether we can do so without poisoning the working relationship unnecessarily.

Professionalism Does Not Mean Giving Up Advantage

There is a real tension between forceful advocacy and professional cooperation. But these can usually be resolved with a focus on practical realities.

If opposing counsel has a witness on the stand for an hour and spends five minutes searching for a document that we can quickly identify, there may be little gained by sitting silently while everyone waits. The judge is unlikely to cut the witness off simply because time was wasted looking for a piece of paper. Helping locate the document may keep the evidence moving, assist the court, and preserve the focus on the actual issues.

That does not mean we fail to take advantage of mistakes that matter. If a witness gives an answer that exposes an inconsistency, we may use it. If opposing counsel fails to prove an essential point, we may rely on that failure. If the other side advances a position unsupported by the evidence, we may say so clearly.

There is a difference between taking proper advantage of a substantive weakness and creating friction over matters that do not advance the case.

A Shared Interest in the Functioning of the File

Opposing counsel often have at least one shared goal: getting the matter to the point where it can be resolved or decided.

That shared goal does not eliminate conflict. But it does mean both lawyers have an interest in a file that is legible, organized, and capable of moving forward.

In court, this becomes especially clear. Both counsel can assist the judge in understanding what must be decided, what is agreed, what is disputed, and where the evidence can be found. A judge who understands the structure of the dispute is better able to engage with the real issues.

The same is true outside court. Counsel who can communicate with reliability and fluidity can often narrow issues faster, avoid unnecessary motions, and reduce cost. They can still disagree. But the disagreement occurs within a working relationship rather than a constantly escalating personal contest.

That matters for the clients. It also matters for the legal system.

Conclusion

Our relationship with opposing counsel is not a side issue. It is part of the environment in which the file moves.

Collaborative law highlights something important about this relationship: negotiation often requires repetition, patience, reframing, and a willingness to build. Not every case allows for an extended collaborative process, and not every case should avoid court. There are urgent matters, imbalances, and circumstances where litigation is necessary.

But even then, counsel remain in a professional relationship. They can press hard without making every issue personal. They can cooperate on process without conceding substance. They can assist the court without weakening advocacy. They can preserve civility without pretending the conflict is not real.

That is resonance with opposing counsel: not agreement, not softness, and not collaboration for its own sake, but a disciplined working relationship that allows the file to move more intelligently toward resolution or decision.

The next blog in these series will explore how effective courtroom advocacy depends not only on preparation and structure, but on disciplined responsiveness to judges, witnesses, and the realities of the courtroom.