Every once in awhile, the Maryland State Bar Association will publish helpful lists. I came by this one from this past spring. We all know that many times, the attorneys are the cause of the problem, not the solution. Here are a few times in dealing with them.
Ten Ways To Deal With A Difficult Opposing Counsel
While many people have the instinct to fight fire with fire, and to right every wrong, you might be surprised how judges truly hate that approach! While a few judges don’t mind truly over-aggressive attorneys, the world is changing, and those attorneys, who will never change, are either retiring or losing their licenses to practice.
If you find yourself in a divorce with one of “those” attorneys on the other side, consider the following:
1. Don’t Get Into A Pissing Match With A Skunk
Both of you will come out smelling! Never lower yourself, however tempting, to his or her level. Make them rise to yours.
2. Ugly People Hate Mirrors
The lawyers who love to send 10 page discovery deficiency letters are also the same lawyers who cannot stand responding to “deficiency letters” sent to them. Many are not prepared because they believe it is their own unique manner of practicing law. Quote their very same objections when you can. It’s really hard for them to argue their Motions for Sanctions when refusing to provide for the very same reason. Motions for Sanctions must be filed. File them as soon as possible.
3. Honey Goes Farther Than Vinegar
Even against the most recalcitrant opponent, a current Magistrate always opened his letters with “I hope this letter finds you and your family (or staff, partners, etc.) well”. When the other side “throws” their exhibit on your table, instead of doing the same, ask the Court permission to approach opposing Counsel to “politely” tender a copy of the proposed Exhibit to him or her. When the other side interrupts you and after you have listened to their half hour speech, do not argue, but rather, politely ask the bench if you could please continue with your position you were making before being interrupted by the Plaintiff/Defendant. (See #5)
4. If It’s Not In Writing, They May Forget
With some lawyers, EVERYTHING needs to be in writing. Always put in the Caption:
Re: Jones v. Jones
THIS LETTER MAY BE USED AS AN EXHIBIT IN A HEARING OR TRIAL
Also, in your Response to Production of Documents which may used in a hearing ALWAYS note “Correspondence from Opposing Counsel” (Use bold if really a jerk). The Bench is not ignorant as to the fueling of fires, mark and admit letters from the other side (excluding settlement negotiations) to address their claim for attorney fees or for yours, etc., especially when they are calling your client an “idiot, molester, etc., who will never see the children”.
5. Never Refer To Counsel In Argument
ALWAYS refer/blame it on his or her client. It achieves two goals: first and foremost, upholds professionalism over the other side, and secondly, it will inevitably, lead to his or her client questioning him or her as to why they are being blamed in front of the Judge-which clients hate. (Noting that some clients LOVE that their attorneys are jerks-just like in the movies, DO NOT give them the satisfaction!) . Resist the impulse in Court to address opposing counsel directly – always address through the Court. It will keep you more civil and calmer (and it’s what the Court wants anyway).
6. When The Other Side Sends A Scathing Letter
Follow John L. Lewis’ recommendation! Write a response. Print it. Put it in your desk. Go home. First thing the next morning, open your desk and throw away the letter and write another. DO NOT fall into your client’s modus of responding to email immediately -only trouble and smelling (See #1).
Instead of responding point by point to a letter filled with false allegations, just respond with, “I disagree with your position and my failure to respond does not in any way indicate that I agree with the allegations set forth in your correspondence”.
7. Use Recalcitrance To Your Advantage
Immediately serve tailored discovery that limits the issues, typically by lack of proof due to non-responsive answers. Sometimes, their case will be damaged beyond repair, and their behavior may be different in future cases.
8. Confirm/Document In Writing
Document everything in writing so as to preserve the story of what is happening, in a tone similar to drafting a pleading. The letters you write will be exhibits that a Magistrate/Judge will read. If you want their recalcitrance to be the subject of you gaining something for your client, you had better not put yourself in a position where the Court says “shame on you both”.
9. Just Deal With It & Prove Your Client’s Case
Some cases are harder than others because of the personalities involved—this will never change. Serve subpoenas on all relevant persons/entities: prove your case and disprove their case as if Counsel were not involved. Depending on how bad the situation, maybe ask for costs of doing their work for them. Be 100% sure of facts and law and stay succinct.
10. Resist The Urge To Fight On Record
If a lawyer makes faces and sighs and annoys you during a deposition or over objects, try something like not acknowledging or, if it gets out of hand (with the rolling of eyes or repeated and constant sighing), simply note it on the record. Resist fighting on the record – never translates well on paper.