How to Deal with Difficult Opposing Counsel

Ted Hirt

Lawyers pride themselves as professionals and as officers of the court. But the ideals that motivate us to practice law often confront the reality of human nature. Too often, our dealings with other lawyers are difficult, or outright hostile. For public sector lawyers, these problems are even more pronounced if our clients are in the spotlight of the media.

This article offers some tips to consider when you encounter difficult opposing counsel. After many years of practice, I learned that sometimes a situation with a particularly unpleasant person cannot be improved. However, for most encounters, these strategies provide a road map for ensuring a professional relationship.

Start Off on the Right Foot. Establish a cordial relationship at the first opportunity. Greet the attorney with a handshake and a smile. Perhaps a gruff demeanor is hiding a genuinely cordial person. As Teresa Schmiedeler, the Director of Public Service at the University of Maryland Carey School of Law, explains: “Laughter, kindness, and a genuine smile can make a difficult situation less stressful. Try not to respond to rudeness with incivility. Keep the long view in life and your professional life.” Colonel Polly Kenny of the United States Air Force also reminds us: “You can disagree without being disagreeable.” Be the voice of reason when you and the opposing counsel appear before the judge, she adds.

Try to Be Cooperative. Courts increasingly expect counsel to cooperate in resolving their disputes. For example, Rule 1 of the Federal Rules of Civil Procedure was amended in December 2015 to emphasize that attorneys must cooperate to achieve the “just, speedy, and inexpensive” resolution of cases and controversies. And the Sedona Conference Cooperation Proclamation, signed by over 200 federal and state judges, reminds attorneys that, although retained to be “zealous advocates for their clients,” they have a “professional obligation to conduct discovery in a diligent and candid manner.” The Proclamation urges attorneys to establish a “culture of cooperation” in the discovery process. To that end, create an accommodating tone at the beginning of your dealings with the other attorney. If you set that tone, you may see a measure of reciprocal, even pleasant behavior. Setting a polite tone may help you find common ground with the attorney in resolving a problem, even if your relationship is otherwise stormy or confrontational.

Be Calm and Stay Calm. If you deal with an abusive opposing counsel, it will be tempting to “fight fire with fire” by raising your voice, acting rude, and obstructing the progress of the case. Indeed, some opposing counsel may want you to take the bait. Tempers can rise during depositions, court proceedings, and even negotiations. You must resist the temptation to mimic bad behavior. You can — and should — resist efforts by that attorney to “bully” either you or a colleague. Remain professional and do not let that attorney aggravate you. Take a deep breath and think before you reply to a verbal harangue or an insulting email. Haley Percell, an attorney with the Oregon School Boards Association, recommends that you first ask yourself if you need to respond to that email. If so, she adds, “be brief and be professional.” You also should re-read your proposed email reply before you hit “send.” Consider asking a colleague to review what you intend to send. Otherwise, your anger may end up as an exhibit to a court filing.

Make A Record of the Unprofessional Behavior. It may be wise to ignore some bad behavior. But, at some point, the other attorney may cross the line and interfere with your legitimate efforts to investigate the facts or conduct discovery. When that happens, you must create a record of that conduct, by retaining correspondence or emails, particularly if the matter needs to be raised before a judge or mediator.

For example, some practitioners know that opposing counsel will act up at depositions —shouting at the deponent, raising unfounded objections, or trying to intimidate you or one of your colleagues. If you expect that misbehavior, there is a great way to curb it. Court rules, like Federal Civil Rule 30(b)(3)(B), or the analogous state or local civil rule, may permit you, with advanced notice, to videotape the deposition. That step alone may result in civil behavior by the other attorney, for the camera does not lie. A practitioner who used this procedure reported its calming effect on an otherwise abusive attorney and his intimidating behavior.

You should also remind the attorney that obstructive objections and coaching the witness are prohibited by Civil Rule 30(c)(2), and explain that Civil Rule 30(d)(3) may require you to seek a protective order if the attorney is conducting a deposition in a manner that “unreasonably annoys, embarrasses, or oppresses the deponent or party.” Be sure that the court reporter transcribes such conduct — including non-verbal behaviors like finger-pointing. You should state: “Let the record reflect that counsel is red in the face and is pointing his finger repeatedly at the deponent.” In that way, you have the written record to provide to the court if you file a motion or need to call the court for a telephonic conference to resolve the problem.

Take Time to Reflect About the Problem. If you are encountering a difficult opposing counsel, engage in introspection. As one former U.S. Department of Justice litigator has explained, you should review your behavior “to make sure you have not done anything to precipitate the nasty behavior or that might have been misconstrued by your opponent and generated the nasty behavior as a response, and, if you think you may have, apologize. That may have the desired effect of taking the temperature down.” Air Force Colonel Polly Kenny observes that an opposing counsel’s hostility may reflect his or her ignorance of the rules, or even a lack of understanding of the case. You should maintain a “keep steady” and “be patient” approach when you encounter hostility, or the attorney’s inexplicable ignorance of basic rules or procedures, she urges. Your perseverance may result in the attorney ceasing the bad behavior when this tactic yields no results.

Keep in mind that, in public interest or public policy litigation or class actions, opposing counsel may be very committed to the principles sought to be vindicated in the litigation; try to understand what motivates your opposing counsel. As one practitioner reflects, “by appreciating the motives behind the aggressive tactics when they are driven by commitment to a cause, you are less likely to over-reach in responding to the bad behavior.”

Address the Problem Sooner, Not Later. If the problem persists, take action before the situation gets worse. Do not pass the issue to someone else in your office. Instead, a frank exchange between you and the opposing counsel may be needed. Perhaps a colleague can serve as an intermediary to smooth the way to a better relationship.

Remember the Big Picture. Last, but certainly not least, do not let the difficult opposing counsel distract or detour you from your objectives. Air Force Lieutenant Colonel Oren D. Leff reminds us that we need to stay focused on what we seek to achieve. We should not be diverted by the fog created by the other attorney, “or have his problem become our problem.” And, as Haley Percell of the Oregon School Boards Association explains, “I always remind myself not to take the behavior personally. I know that I am competent, and that I have handled many difficult situations, and people, before.” She gives that same advice to junior attorneys when they confront a hostile attorney.

As in any other profession or business, encountering difficult individuals is challenging. These suggestions will hopefully assist you in handling trying situations so you can accomplish your important work.

    Ted Hirt

    U.S. Department of Justice (Retired)

    Ted Hirt is retired from the Civil Division of the U.S. Department of Justice.  His views are his own.