How to Deal with Opposing Counsel

How to Deal with Opposing Counsel. Most attorneys need to learn how to "recognize" instead of "respond" to opposing counsel's tactics. At some time in every attorney's career, he or she will be in a heated exchange with opposing counsel. Tempers flare and the stress level reaches a boiling point. All of this can be avoided simply by recognizing what is happening. When you feel your stomach churning and the anger welling up inside, a neon light should flash in your mind. Usually one of two things is happening: Opposing counsel interrupts you and does not allow you to finish, or opposing counsel makes a personal attack on you.

It is easy to deal with counsel who interrupt you. First, you must recognize what is happening. Then, you must realize that opposing counsel probably doesn't even know he is engaging in such obnoxious behavior. When you feel anger begin to brew during your discussions with opposing counsel, do not respond with anger. Once you recognize the source of your anger is opposing counsel's rude and interruptive behavior, calmly explain to him that he is interrupting you and that you are not being allowed to finish what you are saying. In most cases this will be sufficient.

However, there are many attorneys who still do not realize what they are doing, even after being told. You must then use more forceful tactics to get your point across. A useful technique is to tell opposing counsel (after he has interrupted for the third time): "Tell me when you are through so I can tell you my position without being interrupted." Then every time he interrupts, you say, "You are interrupting me. Why don't you let me finish? I allowed you to completely state your position and it's only fair that you do the same for me." Remember, the bottom line is that the attorney who constantly interrupts does not realize that he is being so obnoxious. Therefore, you must constantly remind him that he is interrupting you. This can be accomplished in a calm, controlled way without using any derogatory language. It is only through this approach that you will be able to educate counsel and allow him to alter his conduct with dignity.

When opposing counsel makes a personal attack, your feelings of anger are the same as when you are interrupted. However, the remedy is not as easy. Opposing counsel's words or body language may clearly indicate "you are wrong." This attorney is allowing his ego to get in the way of effective communication. He wants to show you that he is right and you are wrong. Most attorneys' responses are extremely defensive. Nobody likes to be told that they are wrong by words or by shaking of the head and a sigh, as if you just came out of the psychiatric ward. The first order of business is to recognize (instead of respond) to the personal attack. When you feel anger beginning to overcome your normally calm personality, that same neon light should make you stop and recognize what is happening.

Once you recognize the reason for your anger, you need to determine the exact basis of the personal attack. For example, you and opposing counsel may disagree on what documents an expert may be required to produce. When this breaks down into name-calling because "you aren't bright enough to know the rules," or that your opinion is unprofessional or unrealistic, you must quickly focus on the exact nature of the disagreement. Then, you must do two things.

First, tell counsel in no uncertain terms that "I do not appreciate your personal attack on me. There is no reason to attack me personally because we disagree." You must tell counsel that "We clearly have a difference of opinion regarding what documents the expert is required to bring. Let me make sure I understand your position. It is your belief that the expert is not required to bring the documents that we have been discussing and I believe he can. We will let the judge resolve that dispute. However, just because we disagree, that is no reason for you to personally attack me."

Then attempt to determine what issues you can agree upon. At the very least, you and opposing counsel can crystallize your positions, i.e., determine whether you disagree and the basis of each of your theories. It may be that once you are fully informed of the basis of opposing counsel's objections, you will agree with him. It is much more difficult to accept the validity of opposing counsel's point of view if he has made a personal attack upon you, especially if your response escalated the attack. It is a waste of time to defend your position just because your ego is involved. However, dealing with this personal attack in a way that recognizes what it is and precisely focuses on the dispute that caused the attack will greatly assist you in resolving the dispute in a calm, stress-free manner. Many attorneys feel that interruptions and personal attacks are what lawyers are supposed to do. These attorneys have had the wrong role models. Life is too short to unnecessarily add to an already stressful profession.

Here is a tip:

Assume that opposing counsel will not agree with anything that you want or do. If you expect opposing counsel to agree to a reasonable request, you will be disappointed 80-90% of the time. Why not assume opposing counsel will reject your proposals, ideas and settlement terms. If they agree--great. If you assume their only purpose in life is to see if you are tenacious enough to press the case to trial, then your expectations will never be crushed and you will not get angry. Assume opposing counsel knows their client has no defense to your case and that the only thing they can do for their client is to see if you will get tired of their roadblocks, hurdles and insults. Many attorneys are motivated at the beginning of a case, but after 4-8 months, their attention is drawn to another case and they hope you will go away. Make a call, wait a day or two, then write a letter, wait a day or two, then file a motion. Assume you have to follow that procedure EVERY TIME. If you get an agreement on an issue, don’t assume that opposing counsel is your new best friend. Instead, assume that you will meet with the same opposition on every other issue. Be polite but move the case forward.