Dealing with Difficult Opposing Counsel Before Trial - ABA YLD 101 Practice Series

By Ky Fullerton

As my great-grandmother used to say: "There's a bad apple in every batch." Unfortunately, the same is sometimes true of the legal profession today. While the vast majority of lawyers abide by court rules, behave in a professional manner, and seek to resolve disputes as efficiently as possible, every young lawyer will eventually be faced with an adversary whose pretrial conduct crosses the line of zealous advocacy and is below the standard expected of an officer of the court. What should a young lawyer do in this situation? There is no single solution to this dilemma, but the following tips will help the young litigator protect his client's interests and perhaps even turn less-than-stellar behavior by opposing counsel to the client's advantage.

Help! I can't get over the stone wall.
Dealing with opposing counsel who simply refuses to respond to your attempts to discuss discovery issues is extremely frustrating. If you find yourself in this situation, keep a careful record of your efforts to reach your adversary. (One of the easiest ways to do this is to make specific entries in your daily time records.) You will need this record if you ultimately seek relief from the court, especially if the matter is of the kind the court expects counsel to resolve amongst themselves. Indeed, more and more courts are requiring counsel to confer on most, if not all motions, before filing. See, e.g., Local R. Practice D. Or. 7.1(a) (requiring parties to confer on all motions before filing, including dispositive motions). Leave a voicemail asking to confer on the matter and if you receive no response, follow up with a letter or e-mail summarizing your efforts to confer and desire to resolve the issue without court intervention. If you must involve the court, your odds of success are higher when you have made a good-faith effort to confer with opposing counsel regarding the issue in dispute.

Where are the documents?
You have diligently served a request for production of documents. On the due date for opposing counsel's response, she faxes you a response stating that "documents will be made available for inspection at a later date." Two months then pass and, despite several requests, you still have not seen or received access to a single document. In this case, do not be afraid to file a motion to compel production. Although judges generally have no desire to get involved in discovery disputes, they have even less patience for parties who abuse the discovery process or refuse to timely turn over discoverable documents. Tell opposing counsel in writing that you will file a motion to compel on a certain date if you do not receive the requested documents before then. Usually the prospect of a motion to compel will result in production. If you ultimately must file a motion to compel, consider asking the court to award your client attorney fees if the documents sought are clearly discoverable.

What does it take to schedule a deposition?
Courts expect counsel to confer before scheduling depositions. But all too often a request for deposition availability is met with silence. If you do not receive a response within a week or so, issue a notice of deposition with a cover letter recapping your efforts to confer and asking opposing counsel to provide alternate dates if the date in the notice is inconvenient. This practice is usually effective. Few lawyers will risk a dismissal or other sanctions that could result from failing to appear at a properly noticed deposition. If opposing counsel attempts to cancel a deposition at the last minute without good cause, immediately inform him or her that you intend to conduct the deposition unless the court issues a protective order.

I've scheduled the deposition, but opposing counsel is interfering with my ability to depose the witness.
You finally have the deponent in a conference room and start your deposition. Almost immediately, opposing counsel begins to behave inappropriately, including instructing the witness not to answer questions that are clearly proper, making lengthy speaking objections, and coaching the witness. First and foremost, politely but firmly stay in control of your deposition. Make sure that opposing counsel's improper behavior is part of the record in case you need to use it later. (A related tip is to always hire an experienced and knowledgeable court reporter.) For example, if opposing counsel writes notes or whispers to the witness during questioning, you might preface the next question by saying, "I noticed that your attorney passed you a note while you were answering the last question . . . ." If opposing counsel's behavior is particularly egregious, state on the record that you will ask the court to intervene if necessary. Often this threat is enough to stop improper behavior during depositions.

To strike or not to strike?
Another frustrating event is when opposing counsel waits until the eve of a hearing to file a response to your motion, thereby precluding you from filing a reply brief before the hearing. When faced with an untimely response, immediately file, if possible, a reply that also contains a motion to strike the offending pleading. If a party's late filing raises issues that simply cannot be addressed in a short timeframe, consider moving the court to delay the hearing to give you time to file a reply. The fact is, however, that most judges will still consider untimely submissions. Thus, before spending large amounts of time and money preparing a motion to strike, investigate whether the court is likely to grant such a motion. Ask colleagues in your firm how lenient your judge is with late filings. Also consider the practical impact of the motion to strike. Will the motion to strike, if successful, materially affect the court's ruling on the underlying motion? If the answer is "no," your time (and your client's money)will be better spent addressing the merits of the underlying motion.

An informed client is a happy client.
The behavior of opposing parties and counsel has a tremendous impact on the cost of litigation. Tell your client early on if you think opposing counsel's conduct will result in increased costs. For example, if your adversary routinely refuses to produce documents or make parties available for deposition, advise your client that additional motion practice (and attorney fees) will be required. Keep in mind that clients do not like surprises - especially surprises on their bill.

Don't be afraid to ask for help.
Seek out more experienced lawyers for advice on dealing with difficult opposing counsel. Chances are someone in your firm has encountered your adversary and will have seen his tricks before.

Keep your standards high.
Finally, the overriding temptation, especially for young litigators, is to respond to unprofessional behavior in kind. Don't fall into this trap. Judges look with favor upon lawyers who conduct themselves in precisely the opposite manner. If your opponent routinely misses court deadlines, make sure you file everything on time. If your opponent refuses to produce documents in a timely manner, produce documents with your discovery response on or before the due date. Most judges are aware of lawyers who lack professionalism and respect for court rules. Maintaining high standards in spite of opposing counsel's misdeeds will keep you in the court's good graces and pay dividends for your present and future clients.


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About the Author

Mr. Fullerton is an associate in the Portland, Oregon, office of Miller Nash LLP. He has served as vice-chair of the Litigation Committee of the American Bar Association Young Lawyers Division and is the managing editor of the ABA's Trial Evidence Journal.

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