GPSOLO July/August 2010
How to Cope When Opposing Counsel Is a Jerk
It doesn’t take many years of practice to accumulate stories about opposing counsel who act like jerks. Sometimes it seems that the children at my son’s preschool treat each other with far more kindness and respect than some lawyers I’ve met.
I’ll never forget a story I heard as a very young lawyer. A senior partner in my firm and his difficult opposing counsel became so angry during a deposition that they started throwing pencils at each other. Ten years later I don’t recall all the details, but I do remember feeling deeply embarrassed for my colleague’s behavior.
It is easy to think of these experiences as war stories and plot ways to get back at the lawyer who did something awful to you. However, the way we deal with difficult opposing counsel is serious stuff. It can define us as lawyers. If you learn to handle these situations properly, you will serve your clients better and elevate your reputation among your peers. If you don’t, you will lose control of your matters and spend more time and energy trying to get revenge for bad behavior than effectively representing your clients.
Stepping back to consider how you can better handle difficult opposing counsel can help you be a better lawyer and give you more peace in a stressful profession. So let’s consider a few of the jerks you might encounter, taken from my experiences and those of my friends and colleagues, and examine how you might cope with them as opposing counsel.
You call your new opposing counsel to introduce yourself and within minutes, you are holding the phone away from your ear as your opponent screams at you.
Before you succumb to the temptation to yell back, consider how you benefit. Perhaps you achieve a moment of satisfaction, but you have sent a message to your opponent that he can control the tone of your interactions. You have lost control of more than just your temper.
If you handle the situation calmly, you will end the conversation without having relinquished control. I once did this by telling my opponent that I didn’t appreciate his tone and letting him know that I would end the call if we couldn’t discuss the matter more calmly. He apologized and our interactions were fine after that.
These situations can be very stressful, and you may momentarily panic as you consider how you should respond. Don’t be afraid to take a deep breath and think for a second before responding. Know that if you do maintain your calm, you will gain confidence in your ability to deal with these difficult situations. You may gain the respect of a bully who now will know that his tactics don’t work on you.
You are taking one of your first depositions, and you begin to ask the witness basic background questions. Your opposing counsel, who is many years your senior, makes a series of speaking objections. Her tone is pure condescension. She may roll her eyes, give exaggerated sighs, or slump in her chair as if you are wasting her precious time. You have a decision to make.
You could lash back and lose your temper with the attorney and/or the witness. Maybe you will think of some real zingers. But will a zinger truly help anything? Will it advance your case or make the deponent more likely to open up and give you the information you need? It is more probable that your increased hostility will make the witness angry and resistant to all of your questions. Plus, your comments will be recorded by the court reporter. Your opponent will relish the idea of magnifying your comments when highlighting portions of the transcript for the jury at trial.
The better path here is to remain civil, even pleasant. Ignore your opponent’s tactics and remain focused on getting the information you need. Smile and confidently say “you can answer” to the witness. After a while, the witness will get used to answering regardless of the objections, and when your opponent sees that your rhythm remains unshaken, she just may quiet down. You have a clean record for motion practice or trial.
If your opposing counsel becomes very abusive, you have a few options. You can note inappropriate physical behavior on the record. “I want to note that Ms. X was leaning over the table in my direction shaking her fist and yelling when she made that last statement.” You can also call your judge. Don’t hesitate to take both the Rules of Civil Procedure and the judge’s phone number with you to any deposition. Of course, this option should be exercised very sparingly. Use discretion whenever you are considering interrupting a judge’s busy schedule—judges typically expect counsel to work out their spats themselves.
The Phone Conversation Documenter
One of my personal favorites is the phone conversation documenter. Your opponent is pleasant while talking to you on the phone, and you may even feel as if your conversations are productive. Within minutes of hanging up, you receive a faxed or e-mailed letter “confirming” your conversation and misconstruing everything you said. It reads as if your opponent were typing it as you spoke.
While you may be able to ignore these letters occasionally, they often require some response—such as “I never agreed to concede to liability in this case or to have my client pay your client’s attorney fees in suing him.” It could take you an hour to prepare a written response clearing up what you said in a 20-minute conversation.
This is just another trap that can lead to your spending endless hours drafting letters documenting your side of every conversation. If you bill your time, your bill could become ridiculously inflated by these activities, and your client will suffer. If you work on a contingency basis, you will waste precious time that could have been spent on preparing your case.
You don’t need to engage in this miserable cycle. You can take control of the situation by advising your opponent that although you appreciate the convenience of speaking to him or her by phone, you will have to conduct all future communications in writing given the significant misunderstandings that arise every time you speak to him or her by phone. I prefer to be able to speak to my opponents by phone, but e-mail and fax technology make written communications easy and allow you to make each point only once.
The Innocent One
You have been dealing with an obstreperous opponent for nearly two years of litigation. This person has goaded you, baited you, and tried to trick you at every turn. By the first day of trial, you cannot say his name without seething. In your opinion, your opponent is a character straight out of Dante’s Inferno. Obviously, every person who meets this evil-doer will similarly despise him, right? Don’t count on it. The minute this person walks into the courtroom, he is angelic. He is the picture of gentility and professionalism. “Yes, ma’ams” and “Your Honors” roll from his humble tongue. You try to call out his antics with objections at every turn to show the jury just how bad this character is. Your frustration and enmity accumulated over two long years make you look like the unprofessional bully to the judge and jury. He has won the trial before the jury starts deliberations.
This is perhaps the toughest scenario. In this situation, you must avoid the trap from the beginning. Be kind, be pleasant, be firm in your focus, and never let your frustration show to this ultimate bully. If your resolve is strong, the abusive behavior may improve. Understand the game from the beginning, and don’t let your emotions make you engage in the fight. Your opponent will not gain any power over you or the case if you refuse to allow him to set the tone of your interactions.
Most of us will find ourselves dealing with an opponent who acts like a jerk at some point in our careers. Keep in mind that bad behavior is a tool that others can use to manipulate your emotions and your focus in a case. For passionate advocates, maintaining perspective is always a challenge, but it is one well worth tackling.