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| ISBA invites new lawyers to send us "which way to the courthouse" questions like the one below (go to www.isba.org/askedandanswered to find out how). We'll seek answers to selected queries by, among other means, sending them anonymously through ISBA electronic discussion-group members. Then we'll publish the results in the Journal, and maybe other places. |
Q. What do you do when an opposing attorney won't return your phone calls, respond to your letters, or communicate with you in any way whatsoever? I know I can file a motion to compel discovery, but that doesn't help reach a settlement or explain to my client why nothing more has been done on the case. Should I just set it for trial?
NIMA TARADJI, CHICAGO. If you have issued discovery, file your motion to bar pursuant to SCR 219; if you need to set depositions and opposing counsel is not cooperating, notice up the deposition at a time and place convenient to you. Then if there is a no-show you, have recourse under SCR 219. If opposing counsel is not communicating with you, chances are there is no chance of settlement. Assume that the case will have to be tried and prepare it accordingly.
JON SHIMBERG, EVANSTON. Other than professional courtesy, I am unaware of any rule or statute that requires an opponent to return a telephone call or attempt to settle a case out of court. Many attorneys believe, or their clients instruct them, to litigate and do nothing outside of a courtroom.
TIM GUTKNECHT, COLUMBIA. I once had a situation where opposing counsel wouldn't take my calls or return them and wouldn't respond to my letters. After a few weeks of this, I went to his office on a day when I knew he was there and asked to see him. I was told that he was "busy." I replied that I would wait until he wasn't "busy," and proceeded to get out documents I brought along to read and/or work on while I waited. After a while, they figured out that I was fully prepared to to wait all day if I had to, and the other attorney surfaced in order to keep me from camping out in the firm's reception area for the rest of the day. After that day, he always took my calls and responded to my letters. Imagine that.
TED HARVATIN, SPRINGFIELD. Sometimes attorneys, especially those with few cases, do not appreciate that for other lawyers, that case is one of many. Something that is six weeks off in the distance, particularly if it is relatively routine, is just not on their radar screen. They probably have not responded because they have nothing to say. Beyond that, there are several other reasons for not being responsive: 1) Some lawyers are rude. 2) Some are lazy. 3) Some have orders from their client to stall. 4) Some are clueless about how to move forward. 5) Some have not been paid. You must explain to your client that you cannot force someone to respond to settlement overtures or return phone calls. Your only recourse is the legal process.
T. J. THURSTON, HUNTLEY. If there is no pending discovery dispute, a SCR 218 case management conference or settlement conference should be scheduled. If you have sufficient discovery to make your case, ask for a trial date. This will certainly get the opponent moving. Finally, if all else fails, you can always move for default and/or sanctions under SCR 219(c).
BOB PARK, ROCK ISLAND. First, you should keep a log of calls. Second, in your follow up letters, you can refer to the unreturned calls. For example, "I left messages for you on August 1, 3 and 7, but received no call back." This may shame an errant practitioner into taking some action.
Third, if you are calling about unanswered discovery, fulfill the requirement of Rule 201(k). In this regard, there is a case that might be helpful. In Williams v A. E. Staley Manufacturing Co, 83 Ill 2d 559, 566, 416 NE2d 252, 256 (1981), the supreme court dealt with the question of SCR 201(k) compliance, when the rule required personal consultation without exception, saying, "In proper circumstances Rule 201(k) might be satisfied by a showing of active, but unsuccessful, efforts to contact, and proof of telephone calls unreturned or letters unanswered might, in some instances, suffice." Since then, the court has added the provision about opposing counsel being unavailable. Certainly, unanswered calls and letters now fulfill the requirements of the rule.