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.


The Small Firm Scorecard example graphic.

The Small Firm ScorecardTM

Is your law firm structured to succeed in the future?

The practice of law is changing. You need to understand whether your firm is positioned for success in the coming years. Our free Small Firm Scorecard will identify your firm’s strengths and weaknesses in just a few minutes.

Leave a Reply