Drinker Biddle & Reath, LLP
Being a lawyer is not an easy job. We confront countless obstacles from the very moment we take on a matter until the day the deal closes, the settlement agreement is signed, or closing arguments are given. Attorneys cannot avoid dealing with demanding clients. But given the professional rules governing lawyers, we should not have to deal with unnecessarily difficult adversaries. Sooner or later, however, we will all confront an attorney who must make all negotiations, discovery, depositions—you name it—so much more difficult. How do you handle a difficult adversary?
Lawyers often run initial background intelligence on other parties in a case—whether it be by Google, social media, business entity searches, news articles, or LexisNexis people search. We also often conduct due diligence on judges assigned to our cases. So why wouldn’t we do the same for other counsel in our cases (whether they be on the same side or other side of the “v.”)? The first step is to do some legwork. Ask other attorneys in the office and friendly colleagues about your adversary. At a minimum, check to see if there are any prior disciplinary actions concerning your adversary.
Although you will want to establish a working relationship with the other attorneys in the case, it is also essential to understand what to expect. You may learn from the outset that counsel has a reputation as a “bulldog,” has a penchant for subpoenaing every nonparty imaginable, or is often willing to take a “scorched earth” approach to a case. You could also learn that opposing counsel takes a practical approach to negotiations and settlement and is a reputable leader of the bar. Knowledge is power.
Establishing yourself as the reasoned, level-headed voice in the room is not only an excellent approach for oral argument; it is also the best way to set the tone of your relationship with opposing counsel. We tell schoolchildren that two wrongs do not make a right. Do not get in the mud with a nasty adversary. Be respectful of all counsel. Be accommodating. When you advocate for your clients’ interests, do not attack opposing counsel or their argument; instead, attack their client’s position.
No one should take verbal abuse from an opposing counsel. While there is nothing patently unprofessional about assertive and unpleasant personalities—lawyers need a thick skin—you should not tolerate abusive behavior. Create a record. First, try to switch out telephone calls for emails and letters. If you receive a nasty voicemail, keep it. If the behavior comes out at a deposition, make sure it is on the record. There is sweet justice in attaching an adversary’s scathing response to a deficiency letter to your motion to compel discovery. Such writings not only embarrass counsel but also give the court or arbitrator an idea of who you are dealing with in this case.
Although this is an adversarial process, it does not need to be an ugly process. If problems persist, you must get in front of it. First, confront opposing counsel with their behavior. You will be surprised how many lawyers will self-regulate their conduct once they have been called out. If that does not work, however, bring the behavior to the court’s attention. Keep in mind that while no one likes the idea of reporting another attorney’s violation of the rules of professional conduct, we are obligated to report misconduct where particularly egregious.
There is no doubt that depositions bring out the worst in litigators. First, opposing counsel may use this as an opportunity to “put on a show” for his or her client, to intimidate or establish a power dynamic against the witness, or to take the dominant role as against other attorneys in the room (often younger and less experienced attorneys). Moreover, this is a face-to-face situation without a referee like a judge, arbitrator, or mediator.
Court rules will often prevent some abusive behavior if invoked. For example, Federal Rule of Civil Procedure 30 proscribes “detailed objections, private consultations with the witness, instructions not to answer, instructions on how to answer, colloquies, interruptions, [and] ad hominem attacks.” Morales v. Zondo, Inc., 204 F.R.D. 50, 54 (S.D.N.Y. 2001). In fact, “[a]ny objection made during a deposition must be stated concisely and in a non-argumentative and non-suggestive manner.” Fed. R. Civ. P. 30(d)(1). If this happens to you, make sure to state the relevant rules on the record. If counsel does not cease the misconduct, stop the deposition and call the judge.
If the behavior is egregious enough to be sanctionable, make sure the stenographer transcribes it on the record. Describe nonverbal behavior in words. If there are other attorneys present, you could ask that they confirm your representation. If you are off the record and opposing counsel is verbally unprofessional, ask to go back on the record. If you know from experience or intelligence (see No. 1 above) that counsel has a reputation for being difficult at depositions, consider noticing videotaped depositions.
While we may not be able to stop our adversaries from being jerks, we can control our behavior. Avoid reacting in kind. Know that we can be as aggressive as necessary on behalf of our clients, without resorting to bad behavior.
Tracey is a litigation partner at Drinker Biddle & Reath LLP, where her practice focuses on assisting clients with commercial and business disputes, employment litigation, securities law, and internal investigations. She was a speaker at PLI’s
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