When lawyers drive a dispute

Seth Godin, Richard Hall, and Al Nye the Lawyer Guy point to this object lesson in how clumsy, confrontational lawyers can compound (or even create) a dispute instead of resolving it.

The link points to a website by Hank Mishkoff, a fellow in Texas who built a website about a shopping mall he liked only to be sued by the mall owner and its attorneys because his domain name included the name of the mall (which is not a trademark violation all by itself, no matter how much the mall or its lawyers wanted it to be). This website (which is not the site about the mall itself) describes the dispute from start to finish and includes copies of the correspondence and papers in the case.

I can spot at least two ways that the mall owner's attorneys might have tempered the dispute early on: First, their initial demand letter might have been less formulaic and abrasive. (Think, "is this really how I want to introduce myself here?") Second, they might have taken Mr. Mishkoff's letters more seriously before going forward with the case.

The plaintiff's lawyers could have at least framed their letters so as to preserve some kind of relationship that would in turn have given them a better negotiating position. Instead, their hollow responses made it pretty clear to Mr. Mishkoff that they were blowing him off. They didn't care to address his questions and arguments about the merits of the putative case.

We'll never know whether blowing off Mr. Mishkoff's letters was a "strategic decision" or just an expression of habit. We'll also never know whether the plaintiff's lawyers told the plaintiff at the outset that the case might not be a sure win. I hope they did. I also can't help but wonder if they have been just as eager to sue if they had been forced to bring the case in Texas instead of Michigan. If only the pro se defendant had a chance of knowing that he'd need to bring the defense of lack of personal jurisdiction in his first responsive pleading. But what fraction of pro se federal defendants is going to know that?

But let's wander back to the topic of how one opens a conversation with an adverse party. I'll freely admit that some adverse parties (and counsel) are jerks, duplicitous, deceptive, or fraudulent. But sometimes they're decent people who really want a fair resolution, but differ with one's client about what counts as "fair." Sometimes — perhaps even often, depending on one's area of specialty — there's a possibility of a positive working relationship with an adverse party or counsel. There's no good reason to squander those kinds of opportunities, and good reason to seek them out.

Am I in the wrong field if I do not think that law practice is all about manipulating others? If I loathe the cases most polluted with manipulation by parties and attorneys? I've had some experiences in litigation that have caused me grave doubt, but I've also negotiated successful settlements that were good both for my client and for the adverse party. That and other work I've done tells me there's more to law than trying to clobber "the other guy."

[Edited to add: Check out Marty Schwimmer's post on "Between Lawyers": How to Lawyer When Everyone's Watching?]