How Do Attorneys Handle Difficult Opposing Counsel?
Lawyer Magazine
How Do Attorneys Handle Difficult Opposing Counsel?
Navigating the courtroom battlefield, we sought the wisdom of seasoned legal professionals on managing challenging opposing counsel. From maintaining professionalism and documenting interactions to remaining professional and ethical, here are the top seven strategies provided by attorneys and managing attorneys.
- Maintain Professionalism and Document
- Set Expectations for Mutual Respect
- Focus on Issues, Not Personalities
- Respectful Yet Unyielding Strategy
- Disarm with Courtesy or Mimicry
- Stay Calm and Document Everything
- Remain Professional and Ethical
Maintain Professionalism and Document
Dealing with opposing counsel is often viewed as a two-way street; treat the other side how you want to be treated. However, sometimes, opposing counsel can be difficult to deal with. When dealing with difficult parties, it is always best to never succumb to their less-than-tactful demeanor—always maintain professionalism. It is this professionalism that will help de-escalate the situation. Of course, should that not work, it could better your chances of sanctions (if necessary). Separating the person from the problem can help you gain clarity and see that opposing counsel is merely delving into subterfuge as a ploy (or perhaps due to the absence of a good case). Their job is to be zealous, and so is yours. Finally, communicate effectively (spell it out) and document everything (in writing).
P.S., Should the issue be so flagrant a violation of your jurisdiction's rules of professional conduct, remember that you likely have a duty to report it.
Set Expectations for Mutual Respect
Dealing with difficult counsel can be a very frustrating experience. I have found that clearly communicating with opposing counsel early on and stating that I intend to treat them with the same consideration and professionalism I receive is a very good start.
Focus on Issues, Not Personalities
In the context of negotiating a divorce settlement as a consulting attorney for a client in mediation, when the opposing counsel brings conflict to the forefront, I first frame the issue to ensure a clear understanding of his or her perspective, and then I limit my communication to the issue itself and not beyond. Narrowing the focus to the single topic and eliminating the personalities helps to diminish the impact of how the attorney delivers the message or any attempt at building personal animosity.
Respectful Yet Unyielding Strategy
I don't mind difficult opposing counsel. Whether opposing counsel is being difficult or not, I treat them and their viewpoints with respect. If portions of their demands either do not prejudice my client's rights or clearly will be adopted by the relevant tribunal, then I agree to those portions. If other portions are problematic for my client and may not be adopted by the tribunal, then I respectfully decline to accommodate them. Whether opposing counsel is being disrespectful, unprofessional, or otherwise difficult is irrelevant. I am not going to deviate from my strategy based on opposing counsel being difficult.
Disarm with Courtesy or Mimicry
Be nice. Stay cool. When I stroll into court, the first thing I do is find the opposing counsel. If I have never met them in person, I make sure to introduce myself, give them a firm handshake, make eye contact, and smile warmly (if appropriate). I do this even if I can't stand them or if we have had a particularly heated conversation over the phone.
Being nice can be disarming. If being nice isn’t an option, then the next best bet is to mimic the tone and body language of the opposing counsel. If they are using slow and deliberate language, don’t escalate your voice to make your point. By being calm and collected, you remain in control while keeping the focus on the facts.
Stay Calm and Document Everything
When dealing with difficult opposing counsel, I focus on staying calm and professional. It's important not to get drawn into any unnecessary drama or hostility. I stick to the facts and keep my communications clear and concise.
If things start to get heated, I’ll often take a step back and reassess the situation, making sure I’m not reacting emotionally. I also document everything meticulously, so if the other side tries any underhanded tactics, I have a solid record to back me up. At the end of the day, it’s all about keeping my cool and staying focused on getting the best outcome for my client.
Remain Professional and Ethical
The best approach is to stay 100% focused on being professional, formal, ethical, and polite, and not engage with them or acknowledge their antics (except as relevant in closing arguments and making necessary motions). If needed, the court can be asked to step in to do things such as strike comments, rule on objections, or give curative instructions. But the best approach is no drama and to ignore a difficult opposing party to the extent possible, and do your job while observing professional and ethical requirements, and no more. Assuming it's a jury trial, a jury will normally see the situation for what it is and give it the weight it merits. In my experience, a jury gives more credibility to an attorney who acts competently and professionally.
