October 31, 2017 article

Respect Your Adversaries: How to Overcome the Adversarial Nature of Litigation

By Jade P. Gary

While oral advocacy is a critical component of every lawyer's formal education, lessons in how to tolerate difficult opposing counsel are not. Yet, dealing with a demanding adversary is often a reality in litigation where the stakes and tensions are high.

Nearly every stage of litigation is a battle of persuasion, from convincing opposing counsel that the offer you made is favorable and reassuring your client that you have made a fair assessment of the case that justifies your billable hours, to persuading a judge or jury to view the facts of a case as you do.

As a litigator, you must be prepared to fight every day to get the result you want. However, this can be emotionally, mentally, and even physically draining. Many find that there is a fine line between advocating for your client or cause and becoming consumed in the adversarial nature of the work.

I've witnessed pretrial negotiations between adversaries as they rear an ugly head, becoming screaming matches and standoffs that leave a strained relationship between attorneys well after the legal dispute is resolved.

Sometimes factual or legal arguments lead to dismissive, passive-aggressive behavior, insensitive remarks, and, unfortunately, personal insults, which would be shunned in any environment, let alone a professional setting.

This type of overly zealous representation has a counterproductive effect. Instead of benefiting the client, attorneys end up placing clients in a far worse position, prolonging resolutions, and expending unnecessary time and resources.

Civil litigator and mediator Frederick Alimonti identifies common archetypes every lawyer should be prepared to face in successfully navigating the waters of litigation. For example, "the Bully" is the attorney who has a relentless obsession with controlling every aspect of proceedings, and "Mr. Negativo" refuses to compromise under any circumstance, regardless of how mutually beneficial coming to an agreement may be. Federick Alimonti, "Dealing with the Difficult Adversary," 35 Litigation 37 (Fall 2008).

The good news is that there are several tactics you can use when dealing with obnoxious opposing counsel:

  1. Act like you are already in court. Alimonti provides some perspective on maintaining professionalism and protecting the interests of your client, even when you are tested by your adversary. His key advice? Learn to "treat every communication in litigation as if it was before the judge [and] you will never reduce yourself to the hostile tactics of your adversary." By elevating how you conduct yourself with opposing counsel behind closed doors, you will make clear what your expectations are for acceptable behavior and communication. This will ensure that your relationship with opposing counsel gets off to a good start. In the event you are not so lucky and communication breaks down, the next tip may be helpful.

  2. Disarm attorneys who make a habit of making threats and demands. Ethics and white-collar defense attorney Brian Tannebaum suggests that "[w]hen someone is yelling, be quiet. When someone threatens, ignore. When someone sets their own deadlines, say you can't meet it, but will be happy to discuss it over the phone." Brian Tannebaum, "The Practice: Dealing with Threatening, Demanding Opposing Counsel," Above the Law, June 10, 2013. Tannebaum's advice is not about being spiteful or antagonistic, however tempting that may be. Instead, he provides an effective way to defeat opposing counsel at their own game without playing by their rules. Perhaps you know an attorney who acts like a playground bully, barking orders and delivering ultimatums to get his or her way. Caving to this type of behavior means a loss for yourself and your client by giving opposing counsel the upper hand. Your ability to refrain from engaging will preserve your sanity so that you can devote your time to the legal matter at hand. Hopefully, it will inspire opposing counsel to follow your lead and diffuse any lingering hostility. It may even inspire you to humanize your adversary.

  3. Humanize your adversary. The reality is that horrible behavior does not necessarily equate to horrible person. Usually, the tension that arises between attorneys can be credited to someone simply having a bad day. While it's comforting to think that you wear the white hat and opposing counsel is the villain, this type of outlook can hinder your ability to maintain open communication. You must be able to build a rapport and familiarize yourself with the attorney apart from the attorney's client or employer. This may sound like an arduous task, but settling for a sour relationship with opposing counsel will only prolong the experience and taint any future dealings you have together. You may not end up being best friends, but the fact that you find some commonality, be it a favorite baseball team or an alma mater, will help ease your frustration when the attorney is being demanding. Keep in mind that opposing counsel has a family, friends, a busy schedule, and a job to do, just like you, which leads to the next suggestion.

  4. Remember, perhaps opposing counsel is simply doing his or her job. Imagine yourself representing the other side. Would your behavior mirror opposing counsel's? Being assertive and downright aggressive is necessary to advocate for your client. It is naive and unrealistic to think otherwise. So, instead, simply acknowledge and accept that opposing counsel will never change. Cue the next and most important piece of advice.

  5. Check yourself. While you can't control how opposing counsel will act or react, you can most certainly control yourself. Before becoming consumed with the way opposing counsel spoke to you during your last phone conference, the number of objections opposing counsel threw your way during that deposition, or the snarky record opposing counsel made in court before the judge, think about yourself. Are you taking this behavior personally? And if so, is it causing you to react a certain way? Whether you're handling plea negotiations or preliminary hearings, there is no room for your hurt feelings. If your feelings are hurt, provide yourself with some words of encouragement (you deserve it) and keep moving. There's is nothing more empowering than reminding yourself of your own strengths. Once you find a way to detach yourself from opposing counsel's challenges, you will feel in control of every single interaction.

With these strategies, you can find your way through any difficult interaction with opposing counsel, keeping in mind that maintaining a respectable relationship is essential to protect your professional reputation and your client's interest.

Keywords: litigation, solo practitioners, small firms, opposing counsel, adversary nature, client interests, reputation

Jade P. Gary is an assistant district attorney at the Bronx County District Attorney's Office in Brooklyn, New York.

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