Young Attorneys: Have Faith in Your Case

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One of the toughest things for young attorneys is dealing with opposing counsel.

Older attorneys love to huff and puff at new attorneys—somedays it feels like there is a giant target on your back (there is).

The next time opposing counsel fills your head with smoke, take a step back and decide if there’s any fire behind the puffery.

Huffing and puffing usually is just that

If a party (or lawyer) has a really good claim or defense, they bring that claim or defense. They don’t yell and bark about it, they just file a motion (or a case).

If I believed every huff and puff that was sent/screamed my way, I would have closed up my practice years ago. Do I put some stock in huffing and puffing? Sure. Do I put much stock in it? Nope.

Usually about once a month I’m told by a debt collector or opposing counsel “your case is garbage for the following reasons . . .” That conversation usually ends with a settlement offer, despite the fact that my case “has no merit.” On rare occassions, I’ve had defense counsel bring motions to dismiss when they truly think the case no merit (note: none have succeeded). When they want to try and scare me, they just blab about it.

If there is a truly debatable issue, the best defense counsel will just lay out why. They don’t bark, scream, threaten, or jump up and down. They just lay it out there. That makes me listen. I may not always agree, but at least I’ll listen.

Just remember: if an issue is that clear or that winnable, it’s usually not wrapped up in a bunch of bravado. It’s kind of like my old dachshund when I was kid. He barked louder than any dog I know (and would usually scare bigger dogs), but there was no way he would ever win a fight—so he just tried to prevent one from happening.

Yes, I’m suggesting that you picture opposing counsel as a wiener dog. That should help with any intimidation issues.

Don’t ignore what you know about your case/client

Doubt is like a rapidly developing disease. Once you get it, it will get worse and worse and can eventually cripple you. Which is why attorneys try and use it like a weapon.

Smart attorneys, however, do not bring crappy cases or plead meritless defenses (if you do—you are not a smart attorney). So when someone questions your case, remember what you know/what you thought/how your analyzed your case and your facts.

I know my client’s allegations inside and out—because they are cross-examined by me before a case is even filed. And because I practice in a niche area, I usually know the most recent decisions.

That doesn’t mean you should ignore what opposing counsel says or double down at the first sight of trouble. But you know your case as well as (and hopefully better) than opposing counsel. So when they question your client, remember what you know.

If they question the legal basis and start blabbing about this case and that case, ask them for the decisions. Then read them. Then read them again. There’s a really good chance opposing counsel’s interpretation of the caselaw is slightly inaccurate. For example, they bark about how courts have thrown out “cases like this.” Then they send you a decision from an Idaho trial court that held one-time under dissimilar facts that your case is a loser. I’ll take my chances under that scenario.

Do your research on opposing counsel

Ok, let’s assume that opposing counsel potentially has some bite behind their bark. Just because they could bring a motion does not mean they will. Don’t forget they have to tell their client “we want to charge you $5,000 to bring this motion, and it’s probably a 50/50 chance we win.”

Reach out to your network of attorneys and find out what they know about opposing counsel. Most people have a reputation, a reputation that will include “they love motion practice” or “they just bark a lot and will always settle at the 12th hour.”

There’s no guarantee they will follow their prior course of action, but it’s still helpful when trying to predict how they view the case and what they might actually do.

Regardless of how they litigate, you will almost always get some nugget like “just offer to buy them coffee and they’ll stop threatening you” or “don’t push them on _____, that will send them into orbit.”

I’m not saying you should let their personal preference absolutely dictate how you run your case. But you should consider it, and if it helps you get a better result for your client, I would absolutely use that information to your advantage.

Bottom line: smoke does not = fire

If someone could burn down your house, would they really knock on your door and blow smoke in your face?

Have faith in your case and your clients. If you decide there’s a problem, then deal with it as you see necessary. But don’t ever let opposing counsel dictate your view of your case and your client.

(photo: http://www.flickr.com/photos/pbjam/3952904517/)

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  • static

    Over the years, I have tried to warn a young lawyer that they have misapprehended the strength of their position, and that their naive bravado, their certainty that they know what they’re doing, was leading them down the road to perdition. They’ve tended to reject my warning, and only after forcing me to make that motion, crush their souls, destroy their client’s life, do they begin to realize that naive bravado does not insulate them from ignorance and inexperience.

    Of course, if you call it “huffing and puffing,” that changes everything, and old lawyers are just fools trying to get one over on the kids. Or maybe you could write a post suggesting that young lawyers determine whether the other lawyer has a point before making a terrible mistake of assuming, at grave risk to their client, that they’re right and the old lawyer is wrong.

    • Randall Ryder

      If you are threatening young lawyers with the road to perdition, then yes, I would call that huffing and puffing. If you are rationally presenting your position, then I would not.

      • static

        Well, of course, the most important aspect is how the young lawyer perceives it rather than its substance or the harm caused the client. After all, what’s more important than the delicate ego of a young lawyer who demands others present their position in the rational ways that please them.
        I’m pretty sure if you decide the older lawyer is huffing and puffing to intimidate you rather than presenting a position in a manner the suits your liking, there is a rule in equity precluding them from winning.

        • http://consumerlawyer.mn Randall Ryder

          You seem to think that huffing and puffing is always a net gain. But what about when a client’s attorney huffs and puffs to their ultimate detriment?

          That’s what I see quite frequently. But I suppose this is the part where you tell me I still lost and I just tell myself I won because of my fragile ego?

        • hater

          Wow. I have to assume that “static” is Mr. Ryder’s self-created straw man. He(or she) perfectly captures the essence of a blustering, pedantic “experienced” attorney. Bitter, condescending, quick to anger, and ultimately…wrong.

          Ryder’s advice in the post is solid, not naive, and I certainly didn’t detect bravado. There are plenty of opposing counsel (young and old) that will go on and on about how shitty your case is, and how experienced they are and blah blah blah. They should shut up and let the pleadings do the talking. When they don’t, and they just keep telling you how experienced they are, that is a red flag. They are either full of it, or lazy, or lonely.

          Of course a good attorney will investigate any substantive claims the blustering fool is making, but the simple number of years they have been practicing (or been alive) should, for the most part, be ignored.

          Want another good reason to ignore people like “static”? They are the opposing counsel! Is there another person more qualified to NOT have your client’s best interests at heart?

          We all know finding a mentor is great. In fact, it is crucial to building legal skills and knowledge. It is also perfectly acceptable to find a mentor who practices on the other side of the bar in your niche. But that can’t happen WHILE you are on opposite sides of a case. If you’re taking advice from opposing counsel chances are good that one of you is breaking ethical rules.

  • JRW

    This is my standard retort to a huff and puff nastygram:

    I write with all candor: I’ve lost count of the number of cases where defense counsel huffed and puffed at the outset that my client’s claims were baseless, that their client would vigorously defend themselves, move for sanctions, etc., and I ended up obtaining a favorable outcome for the client. Telling me your client thinks my client’s claims are
    weak without articulating the rationale behind your position—absent a
    non-nuisance value monetary offer—doesn’t put me in a position where I can move
    settlement discussions forward. In fact, it’s counterproductive.

  • Noah_Weil

    This post has some very strong points. I think a corollary to it too is that losing isn’t the end of the world. Do an honest assessment of the case, manage client’s expectation, and then make a call. Sometimes you’ll shoot for the win and it won’t fly, but it’s better than capitulating every time.

  • ericballinger

    As a younger lawyer I got the bravado call from opposing counsel telling me how long she had been a lawyer. While her claims seemed far fetched and lacking in any sort common sense, I did not realize she was one of the top lawyers in the field. I did not back down and eventually the case was resolved. I learned a great deal from opposing counsel and she left with some level of respect for me.

    Now that I am one of the “old guys” I play the game. I am a zealous advocate for my client and confidence is a litigator’s key tool. If you match my confidence and make me walk the walk, we will be fast friends. If you whine and snivel, I have no use for you. Rising up to the fight advances to the profession.

    • Randall Ryder

      Are you equating confidence with puffery?

      In my experience, puffery reeks of desperation and a lack of any real defenses/claims.