“If your friends jumped off a cliff, would you jump too?” For generations, parents have deployed some version of that question whenever a child offered the timeless defense:
“But everybody else was doing it.”
We understood the lesson. Someone else’s questionable decision does not become a good decision merely because they made it first. And yet, somewhere between childhood and the practice of law, we occasionally seem to forget.
Opposing counsel files something in an unusual way. They calculate a deadline differently. They omit something you ordinarily include. They use an unconventional citation format. They serve something differently than you expected. They disregard a procedural requirement. And someone says, “Well, that’s how they did it.”
Okay. But why are we doing it?
Opposing Counsel Is Not a Procedural Authority
There. We said it. Opposing counsel is not a procedural authority. Neither is another law firm. Neither is the pleading you found in an old file. Neither is the document someone has been using as a template since 2009. Neither is “the way we’ve always done it.” And neither is something you found on the internet simply because it looks official.
Those things can be useful starting points. They can show you how someone else approached an issue. They may help you identify language, structure, or procedure worth investigating. But they do not answer the fundamental question: Is this correct?
For that, we go somewhere else. The statute. The rule. The court’s local rules. The judge’s standing order. The applicable filing requirements. The actual source. And, when the issue requires legal judgment, the responsible attorney.
But They Did It First!
There is a peculiar comfort in following someone else’s lead. If opposing counsel did it, perhaps it must be acceptable. If another respected firm uses that format, surely someone there checked it. If the court accepted their filing, it must be permitted.
Maybe. Or maybe nobody noticed. Maybe the clerk accepted the document for filing even though something about it was procedurally questionable. Maybe the requirement did not apply in their circumstances. Maybe there is an exception you do not know about. Maybe the rule changed. Maybe their attorney made a strategic decision after analyzing the issue. Maybe they made a mistake. That last possibility deserves more consideration than we sometimes give it.
Lawyers and legal professionals are human. We make mistakes. Opposing counsel is human too. They are therefore equally capable of making mistakes. This should not be shocking news.
Accepted for Filing Does Not Mean “Judicially Approved”
Another dangerous assumption is “The court accepted it, so it must be okay.” Not necessarily.
A document’s appearance on a docket does not transform every aspect of that document into approved practice. Clerks perform an essential function, but the filing counter is not a judicial quality-control department charged with validating every legal proposition, citation, procedural decision, or strategic choice contained in every document submitted.
A filing may make it into the court record and still contain errors. The judge may address them later. Opposing counsel may raise them. Or nobody may ever raise them at all. None of those possibilities turns the document into precedent.
Filed is not the same thing as correct. That distinction matters.
Borrow the Idea. Verify the Practice.
There is nothing inherently wrong with looking at how another lawyer or firm handled something. In fact, experienced legal professionals do it all the time. Prior pleadings, templates, exemplars, and opposing papers can be extraordinarily useful. The mistake is skipping the next step.
Verify. If you see an unfamiliar procedure, ask “What rule permits this?”
If the deadline looks different from the one you calculated, ask “What triggered their calculation?”
If a required element appears to be missing, ask “Is it actually required here?”
If they used an unfamiliar citation method, ask “Does it comply with the applicable citation and court rules?”
If their document differs significantly from your firm’s normal practice, ask “Why?”
Notice what those questions do. They turn imitation into analysis. That is the difference between copying someone’s work and learning from it.
Sometimes Opposing Counsel Is Right
Fair is fair. Sometimes opposing counsel does something unfamiliar because they know something you don’t.
Perhaps there is a local rule you have not encountered.
Perhaps a judge has a particular standing order.
Perhaps an exception applies.
Perhaps a statute recently changed.
Perhaps the procedure is perfectly permissible and simply different from the way your office normally handles it.
Excellent. Now you have learned something. That is why the response to unfamiliar practice should not automatically be, “They’re doing it wrong.” It should be, “That’s different. Let’s find out why.”
Curiosity is considerably more useful than indignation. And considerably safer.
“That’s What They Did” Is Not an Explanation
Imagine being asked why your office handled something a particular way. There is an enormous difference between these two answers:
“Because that’s what opposing counsel did.”
and
“I noticed opposing counsel handled it this way, so I checked the applicable rule. Their approach is permitted, and I confirmed with the attorney that we are going to use the same procedure.”
Same result. Entirely different professional process. The second answer demonstrates something important: independent judgment happened somewhere along the way. That is what we are looking for. Not independence from attorney supervision. Not independent legal decision-making. Rather, independent professional thought.
The willingness to ask: Does this make sense? Is this correct? What is the authority? Should I flag this? Do we need to verify it before proceeding?
Those questions are part of taking ownership of your work.
The Copy-and-Paste Danger Zone
Templates deserve special mention here. Every law office has them. And thank goodness! Nobody should recreate commonly used documents from scratch simply to prove they can. But templates come with a hidden danger: they look authoritative.
There it is. Perfectly formatted. Proper caption. Beautiful headings. Case citations. Signature block. Proof of service. It must be right.
Except perhaps it was right seven years ago. Or for a different court. Or before the rule changed. Or for a different type of motion. Or for a case with completely different facts.
Or maybe it was never right at all. A prior document tells you what someone did before. It does not necessarily tell you what you should do now.
Sound familiar? Same cliff. Different jumper.
When You See Something, Ask Something
The legal professional’s role is not to challenge every unfamiliar choice or become the office procedural police. Nor is it to make legal determinations that belong to the attorney. It is to pay attention.
If something looks inconsistent with what you know, verify what you can. If the answer remains unclear, ask. You do not have to march into the attorney’s office declaring, “Opposing counsel has violated the rules!” Instead, try:
“I noticed they handled this differently than we usually do, so I checked the rule. Can we look at this before I prepare ours?”
Or:
“Their deadline calculation is different from mine. I want to make sure I’m not missing something.”
Or simply:
“I haven’t seen this done this way before. Is there something different about this situation?”
That is not overstepping. That is exactly what a thoughtful member of the legal team should do.
Bring Your Own Map
There will always be someone doing something differently. Another firm. Another attorney. Another legal professional. Opposing counsel. Sometimes their approach will be better. Sometimes it will simply be different. Sometimes it will teach you something. And sometimes you will look at it, check the governing authority, and quietly think: Oh, for crying out loud.
Whatever the answer, make it an informed one. Borrow good ideas. Learn from experienced practitioners. Use templates. Study other people’s work. Be curious when you encounter something unfamiliar. But never surrender your own responsibility to verify simply because somebody else got there first.
Your professional compass should not point toward “That’s what they did.” It should point toward “What does the authority say?”
So, if opposing counsel jumps off the cliff, you are perfectly free to remain at the top with your rules, your calendar, and your dignity intact. And if, after checking the applicable authority, you discover that jumping off the cliff is actually the correct procedure?
Fine.
Put on your helmet, secure the safety rope, and confirm the landing zone first.
Categorized in: Legal Procedure
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