I’ve Got Underwear Older than You: Dealing with ‘Senior’ Members of the Bar

There I was, sitting with my client along with his mother, the victim in the case, and several witnesses. My client agreed to testify against an alleged co-conspirator, and we were all waiting for the prosecutor to arrive. When he finally showed up the meeting went without a hitch. As we wrapped up, I had this encounter:

Prosecutor: So, Josh, when did you graduate law school?
Me: 2010
Prosecutor: So you’re what, 28?
Me: There abouts.
Prosecutor: Wow. I’ve got underwear older than you.

If I could raise one eyebrow (a talent I desperately wish I had) I would have. Instead, I just responded “You need to go shopping more often.”

One of the benefits of being a former fat person is that I have extremely thick skin. Comments like these don’t really get to me. I also understand that a little hazing from a senior lawyer isn’t the worst thing in the world. But when comments like these are made in front of a group, including clients, they can be frustrating. So, as a young lawyer, how does one deal with more senior members of the bar?

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Be Prepared

In an article for Litigation News Stephanie McCoy Loquvam discusses tips for young lawyers dealing with “difficult and more senior opposing counsel.” Her first tip is about preparation:

Be as prepared as you think you need to be, and be twice as prepared as that. The panel [at a program on the same subject] noted that more senior lawyers may try to trip you up, even if you are doing things right. If there are disputed issues that keep coming up in the case, have a prepared answer. Preparation keeps you from getting intimidated or overwhelmed and permits you to maintain focus.

Moreover, the preparation will simply make you look good. If you’re arguing in front of a judge and know all the answers to all the questions, you’ll look much better than the attorney making underhand remarks or showing an unprofessional attitude.

I’m Rubber and You’re Glue

Like any kind of rude comment, I find it best to let comments made by more senior attorneys just slide off of me. My general policy is that I can’t be in control of the unethical or unprofessional behavior of more senior lawyers. So I just don’t let it bother me.

This prevents all kinds of issues. If you get angry, you’re no longer in control of the situation, and you end up being the one making some kind of unprofessional remark. In a similar vein, Loquvam notes that young lawyers shouldn’t be baited by the comments or demeanor of senior attorneys.

Kill Them with Kindness

“You catch more flies with honey than vinegar,” according to every grandmother ever. I’m assuming the only reason to catch flies is to destroy them. But I digress. I’ve found that some senior attorneys are just hostile to new lawyers. It’s just their nature. My strategy with these people is to be as nice as possible. Instead of being rude right back, I crank it up a notch.

It’s important to toe the line between being nice and kissing up to the attorney. The former can win you points, but the latter will hurt your reputation. Sometimes it is difficult to be very nice to someone when they’re cutting you to pieces in court. But everyone is much nicer over a glass of bourbon (or in my case, a Captain and Diet.)

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  • http://blog.simplejustice.us shg

    There are two potentially separate issues at work in your story. One is the older attorney using his experience to undermine you, and the other is his doing so in front of your client.

    My sense is that he was trying to embarrass you to establish that he was in control. Whether he uses age, or law school, or cut of your jib, isn’t important. What is important is that he deliberately made an inappropriate comment in front of your clients. This is inexcusable conduct, and as an experienced lawyer, he certainly should have realized it.

    Your quip in response, that he should go shopping more often, was cute, but likely unfulfilling. What you really wanted to do was tell him to shove his old undies down his throat. Of course, since you need him to help your client, discretion trumped anger.

    This isn’t a new trick, nor does it really have anything to do with age or experience. This is about control, and anyone who intentionally tries to diminish you in front of your client needs to be told that you won’t play that game.

    My suggestion is that you respond, “is there a reason why you are trying to embarrass me in front of my client?” It’s the only response that clarifies, for the client, the other guy’s malicious intent. And frankly, who gives a damn about the other lawyer. It’s your client’s perception that matters, and let your client know that the other lawyer is just being a douche.

  • http://about.me/stefanmusat Stefan

    I don’t know what to say…. senior members of the Bar are always like this. You got a really nice point of view and it’s very nice of you that you try to somehow understand them and to act as the situation requires. Me… well i just ignore them (not very nice of me but…. ) Lucky for me, I got that one eyebrow talent :)

  • Shaun Jamison

    This is somewhat common. Just realize that lawyers don’t need to denigrate your experience if they actually have a case. So here’s a couple for you (no, I didn’t clear them with the board, so use at your own risk):” Lawyers with a winning case don’t have to brag about how much longer than me they’ve been practicing.” OR “I love beating long time lawyers in court, let’s go!”

  • guest

    Why are you still a prosecutor? Don’t most lawyers with balls graduate from the district attorneys office within 5 years in order to make money? What are you still doing here?

  • JD

    Most older lawyers don’t pull this stuff, especially good ones.

    The psychological posture I assume to keep from getting intimidated is, “we’re on opposite sides of the same case.” Meaning, if you’re really hot stuff at your age, why are you, a 60-year-old lawyer, doing the work of a junior associate? Don’t you have anything better to do? It’s not entirely valid but it works mentally.

    So if someone gave me that underwear line, I’d probably deadpan “I bet you do” and breath a little sigh of relief. In my experience, senior lawyers who are about to school me with superior experience and preparation are usually pretty collegial ahead of time. The louder the lawyer, the weaker the case.

  • http://about.me/stefanmusat Stefan

    @ JD I have never met an older lawyer that kept a fair attitude. Probably I will. :) eventually.
    As for “The louder the lawyer, the weaker the case.” I totally agree.

  • BB

    Clerking for a senior district judge conducting a bench trial that pitted two attorneys of vastly different age against one another, I was appalled that the older attorney kept making comments to the judge like “we old guys know better than that, don’t we your honor?” As we left court after a particularly bad session, the judge looked at me and asked, “Doesn’t that idiot know who is going to draft the findings of fact and conclusions of law?” I was 29.

  • http://www.guitaroutlaws.net David K. Hiscock

    +1 on the comments about what may be “lacking” in a “senior” lawyer who pulls an immature stunt like that.
    When facing a D-bag like that, I try to keep the deadpan face and let them know “I’m looking forward to what they’ll be teaching me” at trial.
    This happened most notably almost ten years ago when I was referred a maritime property damage case – and it was pretty obvious I’d never done a maritime prop damage case (or been inside the Federal courthouse as a solo).
    Senior counsel from the brand-name maritime firm was quite dismissive (although the associate was reasonable and courteous throughout) and walked out of the mediation two hours early after “offering” less than our case-costs to settle.
    After a couple days in bench trial (I stuck to liability & damages – a good strategy) and a judgment for 100% plus pji and costs, senior counsel became less dismissive.
    Yes, I *did* send a copy of the judgment to the mediator.
    All respect – David K. Hiscock
    BallardLawOffice@gmail.com 206-789-9551

  • Gil Jimenez

    Oh, the burning need to return the insult tit for tat can be overwhelming.

    To wit: “And I bet they have holes as big as the ones in your case,” or “Yes, I can tell. Please wash them before we meet next time,” or “If you get a job with a law firm you’ll be able to afford new ones,” or just a simple “Eeeeew, so that’s what that smell is.”

    But the best retort is the one I most prefer and have used often: Just whip the sh1t out of the a.h. in court.

    I recall one “big shot” opposing counsel (he made IL child custody law, don’t ya know!!!) from years ago who was relentless in using loud, humiliating public insults to establish his alpha dog status over a freshly minted attorney working his first divorce case (pro bono, first and last one) …

    … until I humiliated him so badly at a hearing that the Judge, in open court and in front of other counsel, parties, and observers, called him out on his lack of preparedness and disservice to his client … and then granted my motion, which ended the case in favor of my client and put money in her pocket. Yes, that did shut the gas bag down – fast and hard. But I wasn’t done. It was so fun to watch him try to slink out of the courtroom unobserved … and then I called him out in the hall and said, publicly and somewhat loudly, “So, since you lost the case for your client, when can we expect your check.”

    The check arrived by FedEx the next day.

    That was back when I was about ninety days out of law school. Of course, I was 35 at the time, and not at all given to take anyone’s crap. But then, as now, I temper my desire to draw blood with the best interests of my clients. Blood may flow, to be sure, when someone is mean for meanness’ sake … but it’s best to wait for the right opportunity to arise, vel non.

    Over the years I have run across SO MANY lawyers like that. I left private practice after 8-10 years and eventually became a government investigation attorney. Same crap from opposing counsel, different job.

    For example: Former IL Comptroller Roland Burris (not yet a Senator) fractiously representing a client at an investigation interview: “Don’t you KNOW who I AM!!!”

    Me: “Hmmm. Your name sounds vaguely familiar. Didn’t you used to be somebody?”

  • http://koehlerlaw.net/ Jamison

    I agree with Guest who questioned why someone that old is still working as a prosecutor. Don’t you normally do that for a couple of years to get some experience and then move on?

    I learned everything I needed to know about handling this type of situation from a young prosecutor in Philadelphia. There was one member of the defense bar — this crusty old guy — who used to bully the 20-something prosecutors, particularly the women. Some of the prosecutors tried to go toe-to-toe with this guy, and both sides just ended up looking like idiots. This woman just looked at him and smiled kindly whenever he said something obnoxious to her at the bar of the court. It was like she was patting him on the head and saying “there there.”

  • Kevin M Wray

    Now that I am 50 —– I don’t pull that kind of crap with young DAs and certainly never put up with it when I was younger.

    I always address my issues with the Court not the District Attorney. While I try to pleasant with the DA — I know my job precludes a buddy relationship. In my experience, I find judges to be the best levellers in the world of one-upmanship. If you show the Judge your are prepared, unflappable and that you are merited in taking the position you take on the client”s behalf; the Judge usually cracks the whip for you.

    Once during a very terse exchange before a Judge in Delaware County PA with a particularly rude DA (who took issue with the fact that I had only been practicing in the County less than a year), I said “I was brought up to be more polite than the rules of colleagueality require and I was not aware when the PA Supreme Court issued me a bar card that I’d need a passport to practice here. My apologies for being new, your Honor.”

    The next 2 minutes were filled with a great welcoming to me and an admonishment to DA in open court.

    Jerks are jerks —- there is no getting around them but being cool calm and collected gets you past them every time.