On making courtesy calls to counsel, considerately.

The Mindful Business Charter¹ ("MBC") has released a document titled "Guidance for Litigation Professionals". It is intended to provide guidance as to the application of MBC principles to the conduct of litigation.²

One of the scenarios it highlights is:

"8. CALLING YOUR OPPONENT WITHOUT WARNING

A telephone call will often be a useful way to discuss and resolve issues between opposing lawyers...

We would encourage their use. However, some people may find unplanned calls challenging, particularly where there is a sense in which the person making the call has had time to prepare themselves (and gather their team around them) or when the time of the call is unsocial or has caught the recipient unprepared and/or under other time pressures of which you are likely to be unaware."

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Calls between counsel can be very helpful, particularly when it comes to administrative matters like timetabling. A quick 5-minute call can save a fair bit of email ping-pong.

Further, there are situations where a call is not merely helpful, but appropriate, such as: (a) putting your counterpart on notice that an urgent application has been filed;³ (b) communicating matters on a without prejudice basis that parties are not prepared to commit to writing just yet; or (c) calling your counterpart to ask why they are not in Court yet, past the time fixed for a hearing.

However, I would suggest that an unprompted call, particularly on substantive matters, can come across as an ambush - an attempt to catch counsel unaware, to keep them off balance, and to fish for information from a less prepared counterpart.

And while the intention behind the call may have been good - wouldn't it be a pity, if such a call contributed to animosity between parties?

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Some suggestions, then:

1) I suggest that by default, a call should always be preceded by an email or text message, asking if the counterpart is available to speak. There will be exceptions to this rule, but this should be the starting point.

2) If we must make an unprompted call, it should be individual to individual - we shouldn't be surrounded by our team when making such calls. Ideally, there should be some parity of seniority.⁴

3) When making an unprompted call, the caller should always start by asking if the recipient is free to speak, and must accept it in good grace if the recipient says that this is not a good time. They should also not take offence if, partway through the call, the recipient cuts off the call and says that they cannot continue speaking.

I must admit that I have not always followed these suggestions. And I assume that some folks will find these suggestions unnecessarily prescriptive. But I leave you folks to consider whether these suggestions, and the underlying principles, are consistent with the way you prefer to practice.