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Being a new lawyer can be overwhelming, regardless 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, one of the challenges for new lawyers is interacting with opposing counsel. A common complaint among new lawyers is how poorly 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 lawyers use during a case. As a young lawyer, you may wonder why anyone would resort to playing games instead of playing by the rules or litigating the case.

For many lawyers playing “games” is part of litigation and part of being a lawyer. It just comes with the territory. Also, in some types of cases, the best option for opposing counsel may be to resort to gamesmanship, as opposed to engaging in litigation. In other words, they are simply playing the best hand that they have.

Frankly, just knowing that lawyers play mind games is a critical insight. You should never blindly believe everything opposing counsel says, whether it is a fact about the case, what the law says, or what the rules say. They may be telling you the truth, and they may be trying to help you. But confirm that on your own time and with another lawyer on your side of the equation. Otherwise, blindly relying on opposing counsel 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. I could only get back on track when a trusted colleague would reassure me that I was simply being hazed.

Keep your head on a swivel.

Stick to the Rules—and Your Interpretation of Them

If opposing counsel has missed a deadline, omitted certain discovery documents, or generally seems to manage their case with no regard for the rules, do not be afraid to call them out.

The rules are the rules. While certain rules may be treated more like guidelines by some lawyers, 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.

In fact, even battle-tested litigators can get lazy about reading the latest changes to the rules of procedure. Younger lawyers, however, tend to check the rules every time there is an issue. And with that in mind, there is a good chance that you know more about the current rules than opposing counsel.

If something seems amiss, double check the rules, and if necessary, call out opposing counsel. The rules are there for a reason. And as a young lawyer, sticking to the rules can be one of your biggest advantages.

Don’t Second Guess Your Opinion of the Case (or Don’t Make It Obvious When You Do)

When you get a cold call from opposing counsel wanting to talk about your case, resist the urge to engage in an impromptu summary judgment hearing. Opposing counsel wants to make you feel uncomfortable. They want to push you around and they want to test you. To the best of your ability, don’t engage, and just redirect the conversation.

Think of the phone call as an opportunity for you to gather information on how they view the case. Ask them why they are calling. Ask them what they want to talk about. Play dumb and say you don’t understand their concerns and ask them to explain it in more detail. You don’t need to deflect; you just want to flip the script on them.

In the majority of my cases, I represent a consumer harassed by a debt collector. In my early years, I would frequently get a phone call from opposing counsel blabbing on and on about how my case is terrible, telling me I have no idea what I’m doing, etc. After about 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, ask them questions for more information about their position, and thank them for the phone call (and settlement offer), and then get off the phone.

My goal is always to get as much information as possible, without revealing what’s in my hand. And to be fair, if I am representing the plaintiff, the complaint is essentially putting my cards on the table. But when they ask me questions about certain facts, I usually deflect and ask them why that happened, or why their client would have done something to harass my client. Even better, if they want to contradict the facts with some magical evidence, ask them to send it over, and say you will take a look at it. Nine times out of ten, they will likely say “oh, well, I can’t share any documents before discovery.”

If there is something I need to reconsider, I am not going to let opposing counsel know that I have doubts about my case. 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

Sometimes the only way to deal with a bully is to punch them in the mouth. It’s not easy, and it’s not always pretty, but sometimes it is the only option.

Standing up to a bully does not mean physically intimidating opposing counsel. It does not mean leaving them a nasty voicemail, or sending a snarky email. It means taking a deep breath and figuring out how to turn the tables. Acting on pure emotion rarely leads to anything helpful. Most of the time, acting on emotions may provide some temporary satisfaction, but it will only cause more friction (and more problems) down the road.

When I need to punch back, I let my actions (or inaction) do the talking. In some cases, the best option is to sit back, do nothing, and disengage. That may cause them to move on to the next young lawyer. Or it may confuse them. Even better, your failure to engage them may cause them to make a strategic error in the case.

The worst option is to stoop to their level and make empty threats. Don’t threaten. If you are serious, just do it. If you want to bring a motion, bring a motion. If you want to notice a deposition, notice a deposition. If there is a discovery issue, 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. Do not hesitate to involve the court in a genuine discovery dispute if need be. Nothing gets opposing counsel to stop yapping faster than some stern words from a judge.

Being the new kid on the block is not easy. Keep an eye out for game-playing, stick to your guns, and, when necessary, learn to throw a strong counterpunch.

Originally published 2012-02-06. Revised and republished 2017-01-19.

  • 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.

    • 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.

    • 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!

  • laraine

    Apply these tips to Pro Se litigants, the lawyers use extreme bully and empty threat tactics. It’s laughable usually.