Academic

Law practice: agree freely to extensions, or play tit-for-tat?

By Tung Yin

Jay Shepherd has an interesting post about how practicing lawyers should respond to requests to extensions of time to reply to motions (or discovery, I suppose).  This, sadly, is an area with which I had a lot of experience in my 3 1/2 years of practice, for some reason -- and usually I was the side asking for the extension.

(Indeed, one time opposing counsel sent me a letter in which he complained about our dilatory response to discovery requests.  He actually singled me out for praise, saying something like "I believe you have been making diligent efforts" and then adding "I do not believe your client has been making similar efforts."  While I appreciated the distinction, I of course was obligated to send a letter back defending my client. . . .)

Anyway, Shepherd tells a funny story where he and his law partner were litigating against a big firm, got hit with a motion with a short response window, asked for an extension, and got denied.  Not long after, the tables were turned in the same case, and the big law firm asked for an extension, which Shepherd's partner denied:

?Our firm policy is to always give extensions when opposing counsel ask, because of, you know, professional courtesy,? he said. ?But I seem to remember a situation in the recent past when we asked for an extension, and you declined. So I?m afraid we?re going to have to pass.?

In retrospect, however, Shepherd and his partner regret denying the extension:

Now, I know that some of you are thinking, ?Why would you give the other side an advantage? What kind of wussy litigator are you?? I?ll tell you: I?m the kind of wussy litigator who realizes that if my case sucks so bad that I need to depend on taking advantage of my opponent?s scheduling difficulties to win, then I shouldn?t be litigating this case; I should be settling it. Because denying extensions in an attempt to gain an edge is total bush-league baseball. We play all nine innings here.

I suppose there's something to be said for that.  But there's also something to be said for playing tit-for-tat, which is to say, responding in like kind.

There's a well-known lawyer in Los Angeles who has said publicly that she never grants extensions of time to opposing counsel because it's never in her client's interest to do so.  In Prisoner's Dilemma terms, she is always defecting, and any opposing counsel who grants her continuances is cooperating.  As we know, cooperating when your opponent defects is the worst outcome for you.

If you think about civil litigation as a form of repeated Prisoner's Dilemma with multiple entrants, then litigation kind of resembles the Prisoner's Dilemma tournament that Robert Axelrod ran back in the 1980s.  Axelrod solicited computer programs that could "play" the Prisoner's Dilemma against other programs, because he wanted to see what program would do the best in such a tournament.  Some people submitted "nice" programs that always cooperated, while others wrote some sophisticated exploitative programs that would try to determine if the opponent was nice and hence exploitable.

The winner of the tournament was "tit-for-tat," where you cooperate the first turn and then copy whatever your opponent did the turn before.

Tit-for-tat was successful because against "nice" programs, it always cooperated, and both programs did well.  Against the exploitative programs, it often ended defecting to "punish" the other side, and it did not do well in those games.  However, overall, tit-for-tat did the best because it maximized its points against nice opponents, and it did not lose much relative to the exploitative ones.

In the same way, it seems to me that if most lawyers used tit-for-tat on extensions, then most of the time everyone would get extensions and their lives would be easier.  But those nasty litigators who never give extensions would soon find that they can never get them themselves, and they would suffer the consequences of their boorish behavior.

Game theory: knowledge is power.

Full post as published by The Yin Blog on March 02, 2011 (boomark / email).