Responses and Reactions

Responses…. Reactions….

Reactions (quick, driven by emotions, more likely to lead to reactive behavior in return).

Responses (slower, logical/analytical, more likely to lead to discussion/resolution).

I’ve thought about these differences a lot recently.

When you’re involved in civil litigation, if someone (either the Plaintiff who filed the lawsuit or the Defendant who is defending the lawsuit) wants the court to take a certain action, she “moves” or “requests” that the court do so. By “moving” the court to do something, a party tries to convince the court to agree with her position based on the document (pleading) filed. The pleading generally consists of facts, legal research and arguments. For example, a party may file a Motion to Return Property, a Motion to Answer Interrogatories (certain questions), a Motion to Provide Documents, a Motion for Entry of a Judgment of Divorce, a Motion to Dismiss a case. When a motion is filed, it is also “served” or sent to the other side which then has an opportunity to respond.

The other side responds by filing a “Response”…. For example, a Response to Motion to Return Property, a Response to Answer Interrogatories, etc. Our court rules specifically use the word and characterize the pleading to be filed as a “Response.” Not a Reaction.

So, why is that? Because certainly attorneys do react. Ummmm…. yeah…. boy do we react…. There are a wide range of reactions attorneys may have when they receive a pleading which contradicts their client’s position.

Over the years—more than once—an attorney has walked into my office thrown the pleading received on my desk and said this is all bullshit… and that’s what my response is going to say. One sentence. It’s all bullshit. Maybe each of us wanted to do this at some point in our legal careers.

But we don’t… we can’t … Because that’s not our job.

Our job is to respond. Our job is to understand what the other side’s position is; what the arguments are. Our job is to educate ourselves as to the basis of those arguments. Our job is to research the arguments and determine—based on that research—what points are valid and which are not. Our job is to point out any “fake news” to the court—facts that cannot be supported, cases not appropriately presented to the court or applicable cases not presented at all. Sometimes our job is to look at the legislative history behind the law being argued—what is the law’s purpose? Is the law’s purpose being met? That’s our job.

Our job is not to file Reactions. Our job is to file Responses.

Our job is to clarify any misconceptions… or misunderstandings… and to seek information to steer clear of our own misconceptions and misunderstandings. We do this through the documents we file, the discussions we have, our appearances in court. That’s our job.

And so, we sit down to write a Response. How do we choose to respond? Are we still in emotional reactive mode as we prepare it? Numerous times, I’ve requested attorneys re-write portions of the response… without the attacks… without the vitriol. Though in doing so, I’ve also acknowledged they couldn’t have written a non-reactive response until their emotions found their way onto a page. Sometimes I’ve told attorneys to just write, reactions and all. Because for some attorneys, unless and until their reactions find a way out, they cannot write. Unless and until the reactions are given space to live, progress cannot be made. And what we’re after is a response… a non-reactive yet zealous and persuasive response which we can file with the court. That’s our job.

Our job is also to understand what lies beneath the action being taken by the other side—behind the motion filed… Is a response necessary or can we reach a compromise by talking? Can a different outcome be achieved? Is this an opportunity for resolution? Does resolution depend on the nature of our response? Does resolution depend on the explicit and implicit messages sent? Because if we can and if it serves our client’s interests to resolve the dispute, that’s our job too.

Receive the information, educate ourselves to understand the position presented, research; clarify and seek clarification, allow space for our reactive tendencies to live before responding; determine if this is a time for resolution. Respond.

Take the time…to respond…in litigation … and in life.

Patricia Nemeth received her Bachelor of Arts degree from the University of Michigan (Ann Arbor). She earned her Juris Doctorate and Masters of Labor Law degree from Wayne State University School of Law. She is the founding partner of Nemeth Law, P.C. which celebrated its 25th Anniversary in 2017. Patricia decided to start a personal blog because she wanted to write about topics other than the law.