Don’t Let Opposing Counsel Get You Down

As a newer lawyer, I am delighted to find my day to day work invigorating and exciting. In fact, only one aspect of lawyering gets me down—unpleasant interactions with opposing counsel.

In my first few months of practice, I learned that one will occasionally have disagreeable run-ins with folks on the other side. These incidents have included lawyers calling me disingenuous (I’m not!), sending snarky emails, and even offering patronizing advice. I don’t pretend to offer strategizes for success against such attorneys. Instead, I offer my methods for staying upbeat when a cranky opposing counsel threatens to harsh your mellow.

Start on the right foot

My first line of defense is to assume that every opposing counsel will be pleasant to work with and strive to move litigation along at a reasonable pace. Even if I have heard rumors that a particular opposing counsel is difficult, I start out with a friendly introduction and assume that the attorney means well. Finding common areas of interest or mentioning people that you both know can help establish a real rapport. This is not to say you won’t disagree, but when you do, you can do so respectfully and based upon the good relationship that you’ve nurtured all along.

Know when to disengage

When opposing counsel is angry, and not responding to attempts at reasonable conversation, I attempt to politely disengage.

In my private life, I dislike personal conflict. I have no trouble, however, representing a client’s interests with passion and vigor. Why the difference? The rules associated with litigation make me more comfortable engaging in the conflict that our profession requires. For example, I would avoid a discussion about politics during Thanksgiving dinner like the plague. That said, if my uncle and I each had 35 pages to brief our points and then 15 minutes to argue before an independent judge, I would feel more comfortable with the exchange. The law’s structure provides less room for saying something stupid in a heated moment and more room for a thoughtful exchange of ideas. The rules also even the playing field—the loudest, oldest relative doesn’t win the fight by default.

The problems associated with Thanksgiving-table arguments also rear their head during informal communications with opposing counsel. In a phone call or a meet and confer conversation, there are no nice rules limiting the speaker’s time and requiring them to listen and respond to your points. When this happens, you may simply need the formality of court rules and procedures to govern your dispute. While judges do not generally like to referee petty squabbles, if the matter is important enough, it’s time to ask for help (and it may also be time to send an eminently reasonable follow up email so that you have confirmation of your position). So when I realize that neither opposing counsel nor I will resolve our dispute, I don’t need to beat a dead horse. I simply want us to agree to disagree.

Don’t be a doormat

When someone says something truly offensive, there’s no harm in calling people on it, but not in a way that escalates the situation.

When I lived in Washington, D.C., I attended a workshop on responding to street harassment. I learned that when someone shouts “hey sexy” (or something worse), you’re not supposed to respond by swearing and giving the person the finger because this behavior escalates the situation and doesn’t change that person’s view of harassment. Instead, you’re supposed to introduce yourself and then say, “I’d really appreciate it if next time you would just say hello to me instead of making me feel like an object.” (I admit that I tried this a few times, and while it did not escalate the situation, it did result in some sketchy looking folks laughing at my earnestness. But that’s okay; laughter de-escalates.)

I have tried the street harassment approach to good effect with opposing counsel. For example, when one opposing counsel accused me of lying about the speed at which I could produce documents, I did not get angry, but I did explain that he hurt my feelings by suggesting that I was lying. Although opposing counsel did not apologize, I felt better because I addressed the issue that I found hurtful in our interaction.

It might not be about you

I have trouble with this particular piece of advice, but I know that it’s right. Sometimes opposing counsel may just be having a terrible day. They may have just been yelled at by a partner or be having issues in their personal life. When I remember that opposing counsel might not actually think I’m disingenuous, but may have just said it in a heated moment, I am more likely to forgive and start the next interaction on a positive foot again.

Move on

When I was a child, my father and I would go for walks after each snowfall. I must have been very short and clumsy because I would frequently fall down in the deep snow. Each time, my father would sing “Pick yourself up, dust yourself off, and start all over again.” I remain grateful to my dad for this piece of advice which, it turns out, has applicability beyond the snow drifts. When I hang up the phone after a tough interaction with an opposing counsel, I can hear my dad’s singsong voice reminding me to pick myself up, dust myself off, and start all over again.

(photo: young angry man shouting from Shutterstock)

Lawyering Skills

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  • http://www.millerandzois.com Ron Miller

    Isn’t think all (1) kinda obvious, and (2) easier said then done? (Not to say this was not well written, because it was.)

    Ultimately, I think if you don’t take things a little bit personally in litigation from time-to-time, you are not really in the fight.