Litigation by nature is adversarial. But the lawyer bully preys on younger or less experienced lawyers. The lawyer bully yells. Interrupts. Belittles. Harasses. The lawyer bully often strikes during depositions or communications when no judge is present to put the bully in her place. But with a little preparation, the following tips should help any lawyer conquer the lawyer bully.
Keep your cool. Don’t sink to the bully’s level. Don’t lose your temper or respond in kind. The best line of defense is to be calm and take the high road. If the bully has an outburst or interrupts you during a deposition or conversation, let him finish, even if he’s yelling. Then say, “Please don’t interrupt me” or “I’m not going to continue this discussion if you’re going to act like this.” For me, as a younger lawyer, one of my personal favorites was to ask the yelling bully: “Why are you yelling?” There are few acceptable answers to that question, and if you’re in a deposition, you’ve just made a record that the bully is yelling. It is also OK to calmly tell the bully that he’s being unreasonable and to point out inappropriate behavior. Don’t do what I’ve seen other lawyers do, saying “OK, I’ll move on.”
If you’re responding to a nasty letter, kill ’em with kindness. Instead of “Dear Mr. Smith, you’re an unprofessional jerk,” write “Dear Mr. Smith, thank you for your recent letter. . . .” The rule of thumb is to keep your communications simple and professional.
Set the tone early. At the first sign of an issue, tell opposing counsel that you won’t tolerate inappropriate behavior. For example, at the first speaking objection during a deposition, let counsel finish her rant, and then politely ask her to refrain from making further speaking objections. If she makes a second speaking objection, repeat your request and tell her you’ll contact the court if she continues. On the third, but no later than the fourth, speaking objection, let her finish her objection, and then advise her that you are contacting the court.
What about face-to-face meetings or telephone conversations? If opposing counsel turns belligerent, immediately tell her that you won’t tolerate it and will limit all communications to writing if it continues. In any bullying situation, stand your ground, follow through, and do what you said you were going to do. Otherwise, you’ll just encourage the bully to continue.
Know the rules. Learn the federal, state, and local rules that apply to typical bully situations. For example, the Federal Rules and many state rules prohibit speaking objections. And for the bully who likes to instruct the witness not to answer deposition questions, the Federal Rules prohibit such an instruction unless necessary to preserve a privilege, enforce a limitation directed by the court, or present a motion under Federal Rule of Civil Procedure 30(d)(3). If, after asking the bully to state the basis for his instruction, you believe the instruction is improper under the applicable rule, advise the bully that you’ll contact the court if he persists. Also, learn the rules governing the circumstances under which you’re permitted to terminate a deposition or request sanctions.
Make a record. In depositions, make a record of opposing counsel’s inappropriate behavior. Once you realize you’re dealing with a bully, don’t allow depositions to go off the record. For any situation, keep a trail of written communications in case you need to involve the court at some point. But remember, never say or write anything that you’d be embarrassed to have the judge or jury hear or read.
Pick your battles. Some battles are more important than others. Don’t argue every issue. Exercise the option to involve the court only on critical points. Don’t retreat when you or your client are being harassed. But otherwise focus on the important issues and let the other ones slide.
Don’t take it personally. Every lawyer encounters a bully at some point. Bullies can cause unnecessary anxiety and even make the non-bully lawyer question his or her abilities. But at the end of the day, the bully’s behavior has nothing to do with you. So shake it off and don’t give up.
Follow these tips and, even if you don’t win the case, you’ll conquer the bully.
The full version of this article originally appeared in the Spring 2016 issue of Litigation magazine, volume 42, number 3. Reprinted with permission. ©2016 by the American Bar Association. All rights reserved. Litigation magazine is a benefit of membership of the Section of Litigation. Learn more about the Section of Litigation.