Don’t Let Intimidation Drive Your Litigation Strategy

intimidating-opposing-counsel

One of the toughest things for inexperienced lawyers to learn is how to deal with opposing counsel. Older attorneys love to huff and puff at new attorneys. Some days it feels like there is a giant target on your back — which, basically, there is.

The next time opposing counsel blows smoke, take a step back and decide whether there is any fire behind the puffery.

Intimidation Can Be a Lawyer’s Greatest Weapon

Law school does not teach you all the dirty tricks opposing counsel will use to throw you off your game.

By nature, many lawyers are bullies. Think of an experienced lawyer as the senior jock in high school. When that jock sees you walking down the hallway in suspenders and carrying a Trapper Keeper, your lunch money is as good as gone.

Just like those jocks, some lawyers rely on their tough image to get things done. Don’t get me wrong; the power of persuasion (in any form) is certainly a tangible skill. And to be fair, the best lawyers I know make the most of their specific talents. In many situations, attempting to scare a young attorney is their best leverage.

Make no mistake, opposing counsel will attempt to bully you. The good news is that just like those high school jocks, the bark is often bigger than the bite. And once you push through the facade, you are in good shape.

Huffing, Puffing, and Chest Thumping is Usually Just That

Opposing counsel will often tell you that your case sucks. But here’s the thing: if a party (or lawyer) has a really good claim or defense, they raise it in the pleadings. They don’t yell and bark about it, they just file a motion to dismiss or a motion for summary judgment (or serve you with a motion for sanctions).

If I believed every huff and puff that was sent my way or screamed at me, I would have closed 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 am told “your case/claim is garbage for the following reasons …” That conversation usually ends with an offer to settle my client’s claims, despite the fact that my case has “no merit.” On rare occasions, I have had defense counsel bring motions to dismiss when they truly think the case has no merit (note: none have succeeded). When they want to try and scare me, they just blab about it.

If there is a real issue, the best lawyers will just lay it out for you. They will not bark, scream, threaten, or jump up and down. They just put it out there. That makes me listen — I may not always agree, but at least I’ll listen.

Just remember: if an issue is so clear or 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 — he just tried to prevent one from happening.

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

Do Not Ignore What You Know About Your Client

If direct intimidation doesn’t work, opposing counsel will often try to turn you against your client. Usually this starts as vague statements like “well, I’ve looked into your client and there are some things that I don’t think you want the court to know” or “I’ve reviewed the evidence, and the allegations in the complaint don’t match up with what actually happened here.”

You have to know your clients and their allegations inside and out — cross-examine them before you file the case. Will you still be surprised sometimes? Sure. But there is a reason why I am picky about who I represent. I know that my client’s credibility will become a central issue in the case.

That does not mean you should ignore a warning shot from opposing counsel. It does mean that you should always take opposing counsel’s comments with a grain of salt and believe it when you see it or hear it. Make them produce whatever evidence they claim makes your client look bad. Then decide for yourself how it impacts your case and your client.

If you let opposing counsel dictate your opinion of your client, you have already lost your case.

Do Not Ignore What You Know About Your Case

The bad news is that opposing counsel just told you that “courts throw out cases like this all the time.”

The good news is that unless it is the United States Supreme Court with the exact same fact pattern as your case, you don’t need to pack up the tent and head home.

When I get hit with this, I ask for the decisions they are referring to. I’ll guarantee you three things:

  1. The case is not binding precedent.
  2. There are other decisions that reach the opposite conclusion.
  3. The facts are distinguishable. A circuit split with favorable facts? I’ll take my chances on that one everytime.

One of the smartest things I ever heard a judge say is “you can always find a case that supports your position; tell me about the facts.” In other words, good facts matter. If you have the greatest facts and a couple of cases on your side, you probably have a good chance.

Get the Court Involved

I’ve been on the receiving end of plenty of ridiculous statements, attacks, and shenanigans. Fortunately, it usually happens early in the case, even before the parties attend a pretrial scheduling conference.

For example, I had a FDCPA case in federal court. The FDCPA is a federal statute, so even a first-year lawyer would understand that federal jurisdiction is proper. The first time I discussed the case with opposing counsel, a partner from a big firm yelled at me and told me something along the lines of “the federal court is going to hate this little case — and they don’t even have jurisdiction anyway — we will just move to dismiss on those grounds.”

At the end of our pretrial conference, the magistrate judge asked if there were any other questions or concerns. I very politely told the magistrate that I was confused about my opponent’s argument about lack of jurisdiction. I then asked opposing counsel to explain to the court why they intended to bring a motion to dismiss based on lack of jurisdiction. Opposing counsel immediately turned bright red and mumbled something about not currently pursuing it, or something to that effect.

Did that win the case? Of course not. But it put the other side on notice that I call BS when I see it. (And we resolved the case shortly after that pretrial.)

If shenanigans happen at another point in the case, I will usually find a way to show the court what kind of malarkey I am dealing with. That generally involves sending very polite letters documenting the other side’s insanity, then bringing a motion or scheduling a phone conference with the court. Courts are not fond of dealing with discovery disputes, but they also have little tolerance for absurd behavior.

When the situation calls for it, take opposing counsel to the principal’s office.

Do Your Research On Opposing Counsel

Let’s assume that opposing counsel has some bite behind their bark. Just because they can bring a motion does not mean they will. Don’t forget, they have to tell their client “we want to charge you $10,000 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, and it could include “they love motion practice” or “they always settle at the 11th hour.”

There is no guarantee they will follow their prior course of action, but a little gossip can still be helpful when trying to predict how they view the case and what they might actually do.

Regardless 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 this thing; that will send them into orbit.”

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

Bottom Line: Smoke Does Not Equal 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.

Originally published 2015-01-21. Revised and republished 2016-04-29.

Featured image: “Verbal aggression against female employee” from Shutterstock.

Subscribe

Get Lawyerist in Your Inbox, Daily

Current Articles
Current Lab Discussions
  • The ol’ Motion for Sanctions as an intimidation device. What can I say, it works, or they would not do it. The request for fines/costs is especially effective on younger attorneys who have to answer to a boss.

    Usually the rediculous in theses Motions give you ample ammunition to fire back a Motion to Strike/Sanctions/Fees of your own. And before you know it, there is detente.

    But totally agree re: researching the other lawyer. Its comicable how many times those bully attorneys have ethics complaints or reprimands in their past, just the sort of information that will help a young lawyer take a deep breath….

    • Interesting. Must find out if a Motion for Sanctions for sanctions is available in ONtario Must be. I am suing a lawyer for unpaid invoice who is responding with all sorts of vexatious garbage

  • Paul Spitz

    A negotiation professor taught me that you should never threaten to do something, because that gives the other side a chance to prepare or counter. Also, if you threaten something and then don’t follow through, you look like an idiot. Instead, just do whatever you were threatening to do, without warning.

    • I’m 100% in agreement. Empty threats are pretty stupid, as a general rule. If you do make a threat, follow through on it.

    • Dead right. If you have a nuke, use it without warning. Your job is to win, not to brag

  • David K. Hiscock

    It’s a good idea to know what your*client* wants and what’s most likely to get you there.
    Shouty, rude or otherwise damaged folks may be playing the role of opposing
    counsel and standing in the way of your client’s goal.
    Threats are a waste of time and energy.
    I file motions for sanctions with a minimum of fuss, but I don’t “shoot to
    wound”; I give the motions judge enough material to “financially
    dis-incentivize the blocking behavior” if the motion is granted.
    The trick is helping spread the word about the shouty/rude/damaged counsel w/o beginning to look/sound like one of them yourself.
    Peer consults are helpful; they usually result in a colleague I know and respect, urging me to (read the first sentence again).

  • Brian D. Day

    Several statements in this article imply that defense counsel are the primary perpetrators of intimidation. I’ve had experience with both sides, and my experience is that the plaintiffs’ bar tends to be the blusterier of the two.

    I don’t really mind the bullies. Attempts at intimidation are usually pretty amusing once you recognize it for what it is. The lawyer with the weakest case is usually the one yelling the loudest. I think a bigger danger is the opposing lawyer who is overly nice and friendly to the point where you begin to drop your guard and forget that you are opponents.

  • Idiot Judge I had a settlement conference in small claims matter yesterday. The Deputy Judge was arrogant, condescending, rude and wrong. Nothing to be done about it except rant until I calm down. Have you encountered judges who think they are gods? Seems to me they are common

  • Matthew Kreitzer Esq

    Being a relatively young attorney, i’ve experienced such tactics first hand from both criminal and civil attorneys. On the civil side, I’ve had attorneys become confrontational and almost tortious in their response to my ethical questions related to issues such as conflicts of interests. On the criminal side, I’ve had prosecutors try to tell me “that is not how we do things” when filing perfectly warranted motions in limine.

    I think young attorneys need to hear this advice from other, more experienced attorneys to realize that they aren’t the ones in the wrong here. To the young attorneys out there reading this; do a good job, do what you think is right, and remain professional and courteous at all times.

  • Christopher Meeks

    Boom. Nailed it. Great article!

  • Gabriel Munoz-Calene

    Attorneys are quick to raise, or even file, Motions for Sanctions. I find this practice distasteful. Motions for Sanctions contradict the traditions of the legal profession, and violate the spirit of the Oath of Admission to the various Bars we are members of.

    Am I old fashioned? To me, a Motion for Sanctions indicates poor communication and advocacy by the moving party. A Judge can impose sanctions, when appropriate, without a party’s request; so why should counsel engage in this tactic?

    Is it malpractice to hold yourself to a high standard where you refuse to file a motion for sanctions based on the principle of it being an unworthy tool? Does the modern zealous advocate have to sink to such a low level in order to be competent?

    • Motions for Sanctions contradict the traditions of the legal profession, and violate the spirit of the Oath of Admission to the various Bars we are members of.

      Could you explain this a bit more? It’s not immediately clear to me which traditions of the legal profession would be contradicted by bringing a motion for sanctions, or how it would violate the spirit of our oath.

      • Gabriel Munoz-Calene

        The article above explores intimidation in litigation, and in particular, the intimidation tactics opposing counselors exercise against new attorneys. I feel that Motions for Sanctions in this context are distasteful.

        In Florida, Motions for Sanctions arise under FL Statute 57.105, linked below, which allows for sanctions against lawyers and their clients in any claim or proceeding where (1) the losing party’s position was not supported by material facts, or (2) was not supported by then-existing law.

        As lawyers, our traditions are rooted in good faith arguments over what is material and what is not. Moreover, our legal system calls for advocacy that sometimes challenges then-existing law. Sanctions smother these practices. An article exploring ethics and sanctions is linked below.

        In a broader sense, Motions for Sanctions implicate access to justice. A party may be intimidated from moving forward with a novel complaint and withdraw when slapped with a motion for sanctions; and the issue is never brought before the court.

        As for the oaths of attorneys, the Florida Bar oath includes the promises: “to opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications.”

        This provision on civility was added to the Florida oath around 5 years ago, in part due to growing concerns about incivility among attorneys. I view Motions for Sanctions as an indication that the parties are not having civil discussion about their dispute.

        Finally, the term sanction is weighted with centuries of jurisprudence. In “the Province of Jurisprudence Determined,” John Austin discusses the meaning of term “sanction” within a legal system of commands and sanctions, and links the term to “evil”:

        The evil which will probably be incurred in case a command be disobeyed, or (to use an equivalent expression) in case a duty be broken, is frequently called a sanction, or an enforcement of obedience.

        John Austin, The Province of Jurisprudence Determined, Lecture 1, 7, 8 (1832).

        References:

        FS 57.105 (2015)

        http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0057/Sections/0057.105.html

        Florida Bar Journal Article (May, 2003 Volume LXXVII, No. 5)
        “New §57.105 Lawyer Sanctions, Our Ethics, and the Florida Constitution: Recent Developments and a Respectful Dissent,” by John P. Fenner

        https://www.floridabar.org/divcom/jn/jnjournal01.nsf/c0d731e03de9828d852574580042ae7a/f328d0a31182fe0c85256d10005d217b!OpenDocument&Highlight=0,*

        Read Austin’s definition of “sanctions” more fully, in Lecture 1 page 7 and 8, here:

        https://archive.org/stream/provincejurispr04austgoog