You’ve prepared your case adequately and properly. You’ve done everything necessary to represent the interests of your client. You’ve acted professionally in all respects toward all parties, and despite all that, the attorney representing the other party in the matter and with whom you must interact in order to fully address the issues with which you are involved has acted totally unreasonably throughout. He fully qualifies, in all respects, as an irresponsible jerk, dope, and dolt. Now, what do you do in order to advance the interests of your client? The other attorney is establishing himself as a major impediment to the effective progress of your case. Everyone involved is experiencing anxiety, frustration, and apprehension, and the parties are questioning whether their respective goals will be effectively achieved at all.
While there are numerous approaches to a successful resolution of the problems caused by the conduct of the recalcitrant attorney, no single approach is a panacea. Any resolution will likely reflect the specific nature of the conflict and the conduct of counsel. The resolution will also be impacted by whether the parties are involved in a litigated action or a transactional matter. The age of opposing counsel, his professional background, any specific bias he may have, any mental health issues he might be suffering from, the underlying personality of the attorney, any personal problems he may be experiencing, etc., may also be factors affecting the attorney’s conduct and actions.
Consider a scenario in which you are being engaged in a complex, highly controversial, highly volatile, and extremely emotional litigated action (such as a contested matrimonial proceeding, a will contest battle, a trademark infringement action, a personal injury action, or some other similar, potentially explosive dispute). You are approaching the matter in a professional manner, but for some apparently inexplicable reason, your adversary begins engaging in outrageous and egregious conduct that can only be described as boorish, offensive, frivolous, and possibly unethical. To put it differently, he begins acting like a jerk, a buffoon, and is becoming obstructive and disruptive to the integrity of the proceeding to the point where the interests of the respective parties are adversely compromised. What do you do? What can you do?
As you begin to consider your alternatives, you should remain calm, composed, focused, and professional in your approach to the issue involved in the litigation. Lack of composure leads to a lack of effectiveness.
Once you are sufficiently composed, you should objectively evaluate the severity of your adversary’s conduct in order to determine the appropriate degree of responsive action you might want to consider. The less offensive the behavior, the less aggressive your response should be. Also, in considering what action you might want to take, give some thought to the possibility that your adversary, in appearing to be acting like a fool, is really feigning that conduct and is actually engaging in a strategy that has, as its ultimate objective, disrupting your attention away from the details of the proceeding, getting you frazzled, and rendering you ineffective in advancing the position of your client. If that is his intent, then you should ignore his inappropriate conduct and focus instead on the task at hand, namely: advancing the interests of your client. Be your client’s advocate; let your adversary know that his efforts are not achieving their intended goal and that you are not succumbing to his buffoonery. Use your strengths to render his strategy ineffective. Use his ineffectiveness to achieve a meaningful benefit and advantage for your client.
Assuming that your adversary’s conduct is not feigned but is instead the manifestation of a deep-rooted personality trait, a desire to win at all costs, or some pathologic disorder, what then are your alternatives? What can you do?
Although the options available to the practitioner are limited only by the level of creativity that can be realized, certain alternatives are suggested and recommended for consideration. These actions include but are not limited to those below:
- Talk to your adversary in an effort to get him to realize that he is acting like a jerk and try to convince him to act more civilly and/or more reasonably.
- Get a friend of your adversary to talk to him in an effort to help him realize that he’s acting like a jerk and that perhaps he could modify his conduct.
- Send a letter to your adversary advising him that you consider his conduct to be inappropriate and/or offensive and that you want him to discontinue acting in the manner he has previously exhibited. Additionally, advise him that in the event that he doesn’t do so, you will take further action.
- Send a letter to your adversary’s firm advising them of his conduct and asking them to speak to him in an effort to have him act more appropriately or responsibly and/or asking the firm to assign new counsel to the case.
- Approach the judge assigned to your case (if one has been assigned) and ask him or her to advise your adversary that his conduct is inappropriate and warn him that consequences may follow if he doesn’t discontinue this conduct.
- Interpose a motion with the court demanding that your adversary be removed from the case and that sanctions, legal fees, etc., be imposed as well.
- If you believe that your adversary’s conduct is caused by some physical, emotional, psychological, or medical condition, or from alcohol or substance abuse or some other debilitating condition, a referral to a program maintained or sponsored by the local bar association could be suggested.
- If your adversary’s conduct becomes or is considered to be so egregious that it constitutes an ethics violation, a complaint to the disciplinary committee of the local bar association could be made.
- If your adversary’s conduct rises to the level where it is considered to be criminal in nature, the involvement of the district attorney’s office (U.S. Attorney or other prosecutorial agency) could be considered.
- If all your efforts to have your adversary modify his behavior should fail and you believe that your ability to effectively represent the interests of your client will be compromised, you might consider withdrawing as counsel in the case. Your personal ego should not have an adverse impact on your client’s interests, and your client may well respect your professional judgment and decision. It is better to withdraw today and retain a good client for the future.
Throughout your unpleasant experience with your less-than-professional adversary, you should remain calm and composed so that you will be able to effectively represent the interests of your client. This certainly is not to say that you should become sheepish with your adversary, but rather that you should conduct yourself in a controlled and measured manner. If your case involves a jury trial, take care that you don’t act in a way that will potentially make the jury perceive you as a jerk, too, by overreacting to your adversary’s unacceptable conduct. Remain fully focused on the issues of the case and the manner in which you approach it. A measured outburst of reactive or responsive anger can, however, have a profound and productively positive effect on the jury. Further, while a trial of the issues does implicitly involve a hostile environment in which aggression is a component part, the excessively combative attitude of your adversary could potentially open the door to advantageous opportunities for you. Be alert to those opportunities and take advantage of them when they arise. Keep in mind that you and your counterpart are adversaries on the issues and not adversaries personally. Be strong, not weak, to the boorish and foolish conduct of your adversary, but make every effort to avoid sinking to the undesirable depths of his improper conduct.