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. The 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.