October 27, 2014

Lawyer bullies: What to do about it

“The legal profession provides fertile ground for bullying,’’ says Julie I. Fershtman, a trial lawyer with Foster, Swift, Collins & Smith PC in Detroit. Indeed, in a study published in Lawyers Weekly Australia, half of the women lawyers and one-third of men lawyers surveyed reported they have encountered bullying in the workplace.

Lawyer-to-lawyer bullying most often occurs during depositions.

 “It’s a fast-paced profession; it’s adversarial in nature; litigation brings a winner and loser; and even alternative dispute resolution, whose conduct is designed for compromise, can find counsel and parties jockeying for position,” says Fershtman, who serves as moderator of the recent ABA webinar, “Bullying by and of Lawyers:  Why It Happens and What to Do About It.” Panelists include Peter Graham, PhD, co-director and vice president of Acumen Assessment LLC in Lawrence, Kan.; Maria G. Enriquez, a partner with BatesCarey LLP in Chicago; and Judge Michael P. Donnelly, Cuyahoga County Common Pleas Court in Cleveland, Ohio.

The panel discusses why bullying is a persistent problem in the bar and on the bench and they examine bullying’s effects on victims and perpetrators.

Bullying lawyers and judges, Graham says, are no different from the playground bully: “The goal of bullying is to devalue and dehumanize the target or the other person.” Graham lists some traits and breeding grounds for bullies:

  • Competitive, aggressive, high but unstable self-esteem, adversarial relationships, psychopathy
  • Life-stage, life circumstances, professional demands
  • Skill deficits, negative attitudes/beliefs/self-concept,  poor leadership competencies, poor anger management and lack of self-reflection/perspective

The consequences of being bullied include depression, demoralization, anxiety, absence, loss of productivity and even post-traumatic stress.

Graham says there are things a person being bullied can do to combat the bully, but he cautions against losing your cool and “getting into the snake pit” with the bully.

 “Bullies have power when they get people derailed from their professional task-focused relationship,’’ he explains. “To get reactive and allow yourself to be knocked off that course is going to lead to bad results more often than not.”

In that respect, Graham lists some adaptive coping responses:

  • Recognize you are being bullied
  • Stop, think and don’t take it personally
  • Maintain a realistic sense of your own worth
  • Gradually draw a line via what is expected of you in the courtroom and in the law firm
  • Know the rules and recourse options
  • Contain yourself and identify a course of action
  • Get an ‘alternate vision’ and wise counsel

Lawyer-to-lawyer bullying most often occurs during depositions.  Common signs are threats against the opposing counsel, obnoxious behavior and raised voices.

“The reason for this is because the bully wants to gain a tactical advantage,’’ says Enriquez. “Or they want to cover up their own insecurity on a particular issue or their own incompetence.”

It is important to recognize when you are being bullied, which isn’t always easy to do, she says. “It’s especially difficult for lawyers who are litigators because we are in a very adversarial culture to begin with,’’ Enriquez says. “So it’s important to know when a good skilled litigator has crossed the line between aggressive litigation skills and into the realm of being a bully.’’

If you are being bullied by an opposing counsel, Enriquez advises:

  • Don’t engage with similar actions or behavior
  • Stay as calm as possible
  • Ignore his/her condescension, including eye rolls, exaggerated sighs, etc.
  • Resist the opportunity to yell back
  • Draw lines you believe should not be crossed and outline consequences to the bully
  • Be prepared to act on consequences you’ve outlined

“If you do draw a line and then you don’t follow through, you will have no credibility the next time around,’’ Enriquez says. “So it’s important to follow up on the consequences that you outlined.”

Fershtman talks about bullying by senior counsel against junior lawyers as well as male lawyers against women lawyers. As a junior lawyer, she recalled how a seasoned attorney during depositions would ask, “What school did you attend?” “He did it in such a bullying way,’’ she said, “not only against me but other lawyers as well. Or he’d make a statement and then say ‘Oh, but you’re too young to know that.’”

Words like “dear,” “honey” and “sweetie” are ways male lawyers try to bully women lawyers, she says. “It may be that it’s their manner to use those terms but it may also be a demeaning thing.” Fershtman advises women lawyers to tell the opposing lawyer to stop being condescending or inappropriate, avoid confrontation and to “remain a consummate professional at all times.”

Seeking legal recourse is the best way to deal with a bully attorney. Among your options are:

  • File appropriate motions
  • Know the ethics rules
  • Consider requesting sanctions
  • Control the environment
  • Keep a paper trail
  • Make a record

According to Judge Donnelly, bullying from the bench happens far too often.

 “Judicial bullying occurs when a judge actively departs from his or her intended role in the process,” he says. “When it occurs from the bench it does more damage to the public’s confidence in the judicial system than any attorney misconduct.”

Judicial bullying can occur due to a judge’s personal insecurity (“rather than learn the job, he or she uses the position to instill fear and intimidate parties; a judge should be welcoming”), lack of an understanding as to the proper role of a judge and a reluctance to do the job (“decide, rule, try the case”).

He cites examples of judicial bullying, including:

  • Undue pressure to settle or compromise
  • Belittling attorneys on and off the record
  • Revealing bias on and off the record
  • Placing unreasonable demands on attorneys’ time, such as rocket docket, no continuances, no extensions
  • Holding attorneys accountable for events beyond their control

Donnelly’s advice to lawyers who find themselves standing before a bullying judge is to stand up for yourself and your client, make a record, refuse to meet in chambers and report the activity to disciplinary council.

“The bully judge is just like the kid on the playground -- they only listen to one thing and that is the people who will stand up to them,’’ Donnelly said.

The webinar is jointly sponsored by the ABA Center for Professional Responsibility, Commission on Lawyer Assistance Programs, Law Practice Division, Solo Small Firm and General Practice Division and the ABA Center for Professional Development