Any lawyer involved in a transaction, negotiation or litigation process knows that interactions with opposing counsel is a highly sensitive matter. Whether opposing counsel is difficult or not, everything you say and do has to be carefully crafted and monitored as it will have an impact on the outcome.
For decades, email has been the primary way of communication between lawyers, and unfortunately has led to many issues.
In this article, we describe five issues of working with opposing counsel and how TakeTurns can help you avoid pitfalls.
#1: Professional courtesy begins with organization and transparency
Attorneys are expected to interact with their peers without hostility, even when they are on opposing sides of a case. One of the best ways to maintain comity with opposing counsel is to keep the process organized and transparent. Take something simple. You’re working at arm’s length, as such each party needs to know when it’s their turn to work and when their turn to wait. While this sounds obvious, in complex email communications it’s anything but; figuring out whose turn it is to do what is frequently lost in message threads, replies, and forwards….
How TakeTurns makes it better
In TakeTurns, both parties have a structured, secure, and transparent platform where they can collect and exchange documents, track document version history, and always have a complete history at their fingertips. When one party works on a document, the other awaits; it's as simple as that. This clear process is a way to organize the back-and-forth interactions with opposing counsel in a spirit of civility and transparency.
#2: Sending the wrong draft (or hitting send too early) can get you into trouble
It is common to see lawyers working for hours on a well-crafted email just to attach the wrong documents and hit send. If it happens to you, there is no way to correct your mistake apart from sending an embarrassing “please do not read previous email” message (which undoubtedly will motivate everybody to read the previous message).
Unfortunately, it is not possible to recall an email after hitting send.
How TakeTurns makes it better
In TakeTurns, each party has the ability to recall. When you send an update, if you made a mistake or forgot an important document, recall effectively gives you an undoas if it never happened afterwich you can fix the error. Not only does this protect you from making mistakes, but it also keep the transaction flow clean between the two parties.
#3: Know who, why, and how to copy people on emails.
Email is the main coordination mechanism for your transaction. Keeping the right people informed at the right time has an impact on the outcome. Today, when it comes to including, or copying, others in emails, you have two choices: the recipients can be visible (CC) or invisible (BCC). This decision needs to be made on every new email (and revisited when forwarding threads!). After all, given American Bar Association Formal Opinion 503:
“In the absence of special circumstances, lawyers who copy their clients on an electronic communication sent to counsel representing another person in the matter implicitly consent to receive counsel’s “reply all” to the communication.”
You’ll want to keep your clients out of CC. Although BCC’ing them might not be very much better since folks who are BCC’d can easily reply all by accident.
How TakeTurns makes it better
With TakeTurns, there’s none of that mental overhead keeping track of who got copied when, and if you forwarded the right email, each party can set the participants' roles in advance, without having to manage cc: lists. Each participant can have one of four roles: Leaders can update documents and send updates, contributors can only update files, followers can see what is happening (the equivalent of cc:), and ghosts are invisible followers (a better bcc:). If you really need to copy your client, the ghost role is perfect for this: They will be able to follow everything that is happening without being seen by opposing counsel or being able to accidentally “reply all” to everyone.
#4: Track versions in a clear way
One of the most annoying things when working with opposing counsel is how both parties name and manage document versions. Because documents are exchanged by email, there is no unified version control, so each lawyer has to manually add codes and numbers to the file names, which frequently end up being something like “transaction-draft-v10-final-final.docx”.
How TakeTurns makes it better
TakeTurns takes care of tracking document revisions exchanged between parties, with each update made. You and the opposing counsel can see the full revision history of documents.
#5: Keep a full history of exchanges just in case it ends up in front of a judge
We should always remember that everything we write to opposing counsel could end up in front of a judge (it’s a variation on the infamous New York Times rule). But the opposite is true: If we happen to find ourselves in front of a judge, we should be able to produce what was said. Well, with email, it’s easier said than done since messages and attachments are buried in hundreds of threads.
How TakeTurns makes it better
In TakeTurns, all interactions between parties, including documents, versions, and messages, are historized. At any time, participants have access to Recap, a complete timeline of the discussion between parties. And when your process is over, you can archive everything in one package, available to all participants.
Conclusion
With email, there are always risks—sending the wrong draft, copying the wrong person, losing track of document versions—the list goes on. That's where TakeTurns changes the game. It's straightforward, keeping everything organized and everyone on the same page. No more chaos or oops moments.
Try TakeTurns: The Safer, Easier Way to Work with People Outside of Your Organization
TakeTurns is your one place to share, collect, and collaborate on business-critical documents and files with your clients, vendors, partners—or any external organization. It turns that clutter of emails, attachments, shared folders, and messages into a structured, secure, and transparent TakeTurns Flow. Ready to improve how you collaborate externally? Try TakeTurns for free.
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