New Attorney? Don’t Get Intimidated by Opposing Counsel

Being a new attorney can be overwhelming, regardless of whether you are a solo or work at a big firm. One way to help ease the transition is finding a mentor to show you the ropes.

Even with a mentor, however, one of challenges for new attorneys is interacting with opposing counsel. A common complaint among new attorneys is how badly they are treated by more experienced opposing counsel. Here are some tips to help you stand your ground and reduce the intimidation factor.

The game within the game

Law school does not teach you about the game within the game—the tricks and mind games that some attorneys utilize during a case. Of course, not every attorney plays games, but you need to be prepared for the ones that do.

Frankly, just knowing that some attorneys play games is a key insight. Some young attorneys blindly believe everything opposing counsel says—which can drastically alter the course of a case if you don’t know any better.

I can think of a long list of things that opposing counsel threatened or promised to do—99% of which never actually happened. At the time, however, those threats caused me to underestimate or re-think my case or strategy—which is exactly what they wanted.

Keep your head on a swivel—and don’t believe the hype.

Stick to the rules

If opposing counsel has missed a deadline, omitted certain discovery documents, or generally seems to manage their case with no regard for the rules (state or federal), dont be afraid to call them out.

The rules are the rules. While certain rules may be treated more like guidelines by some attorneys, you are not bound to share their interpretation. They might be testing you, they might be used to flaunting the rules with no repercussions, or they might not be paying attention.

If something seems amiss, double check the rules, and if necessary, call out opposing counsel. The rules are there for a reason.

Don’t second guess your opinion of the case (or don’t make it obvious)

In the majority of my cases, I represent the Plaintiff. Most of the time, I get a phone call from opposing counsel blabbing on and on about how my case is terrible, I have no idea what I’m doing, etc., etc. My favorite part about these calls is after usually ten minutes of this, I am presented with a “nuisance value” offer to settle the case.

The first couple of times I didn’t immediately dismiss the case, but I did start second guessing certain aspects of my case. In the long run, those initial calls didn’t change the case, but they did cause an initial road bump. Don’t let that happen to you.

When I get those calls now, I let opposing counsel talk as long as they want, thank them for the phone call (and settlement offer), and then get off the phone. I rarely engage in a pseudo summary judgment argument over the phone—that is why we have judges.

If there is something I need to reconsider, I am not going to let opposing counsel know that I have doubts about my case. On the other end of the spectrum, I also tend to refrain from revealing additional information. The bottom line: resist the temptation to engage in a motion hearing over the phone, it rarely turns out well.

When necessary, punch a bully in the mouth (under the rules)

Sometimes the only way to deal with a bully is to punch them in the mouth. For young lawyers, take that figuratively—taking it literally would not go over well with the PR board.

Standing your ground does not involve sending a emotional e-mail to opposing counsel. That rarely leads to anything helpful. Frankly, you might find your late night e-mail as part of opposing counsel’s motion in an attempt to make you look bad. If you’re bold, you could always drop the f-bomb, but I would suggest you avoid that urge.

When I need to punch back, I let my actions talk for me. I don’t threaten to file a motion or take a deposition, I just do it. If there is a discovery issue, I deal with it under the rules, not by sending random e-mails.┬áThe bottom line is that the rules of civil procedure are your friend. Don’t ever be hesitant to enlist the court’s involvement when necessary. Nothing gets opposing counsel to stop yapping faster than some stearn words from a judge.

Being the new kid on the block is not easy. But keep your head on a swivel, stick to your guns, and when necessary, through a strong counterpunch.

(photo: http://www.flickr.com/photos/tripphotogallery/4060108856/)

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  • Anonymous

    This column is spot-on, and should be read by every new attorney — especially solos.

  • Jennifer Gumbel

    I’d also add to not let opposing counsel’s pedigree intimidate you. You both passed the bar. If you’ve done your research, you should have a good handle on the merits of your case. Also, don’t let blustering statements from a seasoned OP keep you from applying common sense. It seems that, 90% of the time, invoking the Constitution or high emotional statements translates into a “show” that there’s a poor case.

    • http://consumerlawyer.mn/cgi-sys/suspendedpage.cgi Randall Ryder

      Agreed. Last time I checked, the Rules of Civil Procedure are the same regardless of your level of experience.

  • Jennifer Gumbel

    Sorry, OA.

  • Jessie Lundberg

    I have found this to be very true, and very frustrating. One response I have found to work well so far, when I think opposing counsel is full of it, is to say something like, “Thanks but do I feel that our position is well-supported. However, if you have any authority to the contrary, I would be happy to review it. In the event my analysis is mistaken I will gladly advise my client that we may need to reconsider our position.” I have never had provide anything in response to this offer. Instead, I get things like, “Well, we’ll just have to agree to disagree,” at which point I know an attorney is all talk and empty threats.

    • http://lawyerist.com/author/samglover/ Sam Glover

      My general rule of thumb is similar: the more fired up and indignant opposing counsel is, the more likely he or she is just blustering.

  • Erin

    Also, when representing Plaintiff, watch out for Rule 11 threats. In my first case representing a P, I had an older, more experienced attorney throw that out and suggest I better dismiss. I almost threw up, until I spoke with a more experienced attorney who let me know that was exactly the goal and that I was fine.

    Lastly, remember you are smarter than you give yourself credit for!

    • Jessie Lundberg

      I had this happen recently, too. In addition to threatening sanctions, the “older” attorney advised me that my letter to her client outlining our claims was “illegitimate,” “ill-advised,” “illegal,” “inappropriate,” “threatening,” “harassing,” and, my favorite, “your use of your law degree to threaten an illegitimate claim needs to be re-examined.” I later found out from a colleague that this particular attorney is well-known for her awful behavior toward other attorneys, but it was definitely enough to give me pause initially.

  • Shaun Jamison

    My favorite one when I was new was when the opposing attorneys defaulted to “I’ve been practicing for 25 years…” That’s when you know you’ve got them. They wouldn’t have to brag about their experience if they had a good case. They would be discussing the merits. Press on.

  • Susan Alig

    I’d also like to add that if you’re a new graduate who has just opened a solo practice, and you’re doing a good job, odds are that you’ve read the actual statute recently with this case in mind, and that you are more up to date on the law than your opponent. I can’t tell you how many times I’ve informed opposing counsel of a change in law– people get comfortable with their skills and rest on their laurels.

  • Suzie Easter

    Thank you for the tips. I’m glad you mentioned the rules. I need to remind myself of them sometimes!