How do you make your first assault on a contested matter in bankruptcy? Pick up the phone to your opponent!
Countless times, a new bankruptcy lawyer gets an objection or opposition and indulges in a reflexive question about what kind of pleading to file or counter manoevre to initiate. Their first move should be to pick up the phone to opposing counsel to see if the matter can be settled or the issues narrowed.
I remember vividly my first contested matter when I represented a Chapter 7 trustee. I continued the matter several times, afraid to confront opposing counsel for fear of revealing just how new I was and how unsure I was of what to do. Thirty years later, anyway, it’s clear to me that I should have gotten on the phone and asked my opponent why he took the position he did, what was the legal and factual support for it, and did he see any opportunity to compromise or narrow the issues. I could have avoided making a commitment on the spot and bought myself time to reflect by telling him, “I’ll have to discuss this with my client.”
By at least listening to the thinking of the other side, you get time to prepare your counter argument and marshal your resources in support of your position. You don’t get surprised in court and find yourself with the deer in the headlights look.
I also know now that one of the easiest ways to look like a fool in the courtroom is to have to admit that you and your opponent have not talked before appearing in court. You find yourself unable to speak to the other side’s position and you reveal that, rather than work the problem yourself, you’ve just dumped it in the court’s lap. Not a terribly effective approach….
Utilizing the phone may also allow you to gain a little advantage, though it may be long term, if you can tell the court that you’ve tried on X number of occasions to reach opposing counsel and your calls have not been returned. You’ve made your opponent look like he’s the one unwilling to try to resolve or narrow the dispute.
As the telemarketers say, “Go ahead, pick up the phone…”