I can vividly remember my first tangle with difficult opposing counsel during my first year of practice. He talked down to me, twisting our conversations and ‘memorializing’ them in accusatory emails. He only had two tones: (1) loud and sarcastic and (2) loudest and profane. The worst was when he called me a liar in open court and the judge let it happen without reprimand. What I recall most intensely was how I felt having to deal with him constantly – how I dreaded checking my email, how I had to screen my calls (because I was afraid that I would hear from him), how I had to spend so much time writing responsive emails and letters that were not germane to the dispute, and, as much as I hate to confess this, how he made me question whether I was cut out for the practice of law.
Thankfully, I had and still have great mentors, who have helped me in my practice, including sharing their tips on how to handle difficult opposing counsel. Here are a few of them:
1. Stick to the high road.
Easier said, than done – believe me, I get it. When my adversary was yelling and cursing at me, it took a lot for me not to hang up on him. I wish I could say that I took the high road because I’m a better person, but it was more a strategic choice. As a practical matter, it’s hard to complain about another lawyer degrading you – if you’re dishing it out too. Plus, if you haven’t caught on already, a fundamental truth in the practice of law is that your reputation is everything. I’d rather be known as someone who is always professional and civil than enjoy the short-lived satisfaction of letting this guy have it.
2. Resist the urge to instantly respond (or respond at all).
Again, easier said, than done. After all, what kind of advocate am I if I can’t stick up for myself? However, as representatives for our clients, we need to remember to consider our client – and consider whether escalating a personality conflict will really help move the ball forward. Consider whether a response is necessary at all. Of course, there is a time to respond – the last thing you want to do is for you to allow opposing counsel to create a record of emails where your silence may be deemed admissions. However, waiting until you cool off is not a bad idea.
3. Be the opposing counsel you want to deal with.
Duh. What does this look like? Grant reasonable extensions when you can. Stick to the issues (don’t make it personal). Make your word your bond.
Look, the bottom line is this – mean people stink. Mean lawyers stink more. Don’t be stinky. The practice of law is stressful enough without having to deal with difficult opposing counsel. In my humble opinion, as young lawyers, we should especially look out for each other and give others less reason to hate on us. Let’s work together to create a new generation of lawyers who practice with professionalism and civility.