Source: “Handling the SOB Opposing Counsel “ / By Bonnie Richardson, Folawn Alterman & Richardson LLP
You are sitting in your office, quietly reading materials for a case. The phone rings and you pick it up and it’s Joe, who announces that he is representing one of the defendants in the case you filed about a month ago. At first, he introduces himself in a seemingly benign introduction and asks you to explain the theories behind your claims. As you switch focus and begin to respond, Joe suddenly starts ripping into the stupidity of your client’s claims, the complete lack of clarity and intelligence of whoever wrote the allegations, and that, by the way, he is conferring with you on his Rule 21 motions to strike, dismiss and obliterate the piece of crap you had the nerve to call a complaint. You are now dealing with the SOB Opposing Counsel.
What is your response? Most people confronted with this behavior have the immediate urge to fight back. And we are lawyers after all — that’s what we are supposed to do — fight for our clients, right? When faced with confrontation, we as humans tend to revert to our base survival instincts: fight. You want to charge right into battle to immediately defend yourself with fighting words to answer the insults that were directed at you. Nando Pelusi, a psychologist who frequently writes on this subject, calls this type of response Neanderthink.
Neanderthink. It’s the raw emotional response to immediately defend without thinking. Resist the ancestral urge to Neanderthink. You will serve your client better if you respond with an intelligent, rational and considered response.
What will you accomplish by fighting back with the insulting, degrading and difficult counsel? Try to look at this way. How much negative energy does it take for someone like the SOB counsel to act this way?
A lot! And his goal is obviously to make you waste your energy and engage with him in battle. In his mind, he will always win if you respond in kind.
When opposing counsel decides to fly into a rage and take it out on me personally, I look at this way — I am delighted! I am going to win because he is already losing the case for his client. If these are the tactics that he has to use, then I must have the better case on the merits. And if he is going to waste his energy and time being an insulting jerk, then I can use my energy and time to outwit him and win my case. The SOB is almost always predictable — he’s an SOB after all.
Instead of responding with a fight, fight the urge to engage in like-kind warfare. Try responding by feeling compassion for your opposing counsel. If you do not know him and he doesn’t have the reputation for being mean and unruly, maybe opposing counsel is dealing with a personal crises or perhaps something really bad just happened to him in another case. This may not excuse his behavior; rather it’s just a product of his own inability to control the impact of his emotions. I feel compassion for people who are going through such a difficult time that they act out with such negative energy. If you can find it in you to feel compassion instead of reverting to Neanderthink, you can set the stage for the entire case and better control the outcome.
Types of SOB Behavior and Tips for Handling The Chronic Mean Emailer:
This is the person who likes to write mean and nasty emails – typically at least two pages in length, single spaced and sent at 4:55 p.m. on Friday afternoon, right as you are thinking about enjoying the weekend. You may not be able to control the Mean Emailer from typing out his constant barrage of nastiness, but you can control how you respond.
Open the email. Briefly recognize that it is the Mean Emailer at it again. And then don’t read it. Wait a bit and get some other things done. When you are ready to read a bunch of craziness, take a deep breath and skim it so you can figure out if it’s something you need to address or not.
If there is no purpose to the email other than to be insulting, then don’t respond. Remember, you are in control and what better way to be in control than to simply not engage or respond in any way. If you feel that you need to get it out of your system, type up your response in a separate document, let it all out what you’d like to tell that SOB, and then don’t send it. Stash it away so you can chuckle about it later.
If there is something buried in his diatribe that would otherwise need to be addressed, then only respond to the thing that actually needs a response. My partner received a three page email with insults and accusations and a general recitation of how bad our part of the case was going, and then a demand that we accept their one and only offer of settlement. My partner’s answer? One word. “No.” There was no real way for the SOB to engage. How would the SOB respond to that one word? He could go off on another rant, and you can respond the next time with “I disagree.” You know you are winning because he is wasting his time and energy and you are in control. If you need to address a couple of things, then just address the substantive stuff and refrain from engaging. Write your response as if it is Exhibit A. You never know, he might give you enough material to move for sanctions or an enhanced prevailing fee later.
The Telephone Rager:
You know this person — the bully who causes your phone speaker to crackle. This is the person who does not want her antagonistic behavior documented in an email because she has probably had her nasty emails used against her in the past. This person insists on direct confrontation. She carefully times her call so you are caught off guard right as you sit down to enjoy your morning coffee at your desk for the day. She yells, constantly interrupts and talks over you, no matter what you say. How you respond will depend on your personality but have compassion for this Telephone Rager and don’t stoop to her level.
If you have the personality for which this behavior shakes you to the core, then just don’t take her calls. Get caller ID and direct her to voicemail. You don’t need to take this person on over the telephone — you can just wait until you are in the courtroom or in front of a video for deposition. If she berates you for refusing to engage with her over the phone or in person, explain in a short but nice email: “Ms. [Telephone Rager], I won’t talk to you when you call me and start yelling at me. Until you are ready to speak with me in a calm manner without interrupting me, I will only communicate with you in writing.” I like to give the Telephone Rager three chances because who knows what is going on in her personal life or work career. Maybe she is just having a couple of bad days. But each time she starts raising her voice and interrupting, I calmly say “You are getting worked up again so I am going to hang up.” And then shoot her a quick email and explain “Ms. [Telephone Rager], you seemed very upset, and as I have said before, I won’t talk to you if you yell at me.”
If you have the personality that finds this attempt-at- bullying behavior amusing, then take the phone, hold it away from your ear, sit back and enjoy your opponent’s lack of control. Sometimes, I let there be an uncomfortable silence after the person is done screaming. The Telephone Rager hates silence because she thinks she is going to get a really great, fighting response out of you. And if you are silent, that throws her off. She might even say “Hello?! Are you there?!” And then you give it just a few more beats and say in a very controlled and slow voice. “Yes. [silent beat] Are you? Now what was it that you needed from me?”
If you like to be social and can find the good in just about anyone, you can really catch the Telephone Rager off guard by being nice. When the Telephone Rager calls and announces her name and full presence, say “Oh, hello [Telephone Rager]! [Very sincerely with no sarcasm:] “How are you doing? How is your cat you took to the vet the other day?” Usually, even the SOB has a life outside the practice and you can pick up a few things about them through the course of the case. If the Telephone Rager still continues with the bad behavior, then know that you were the better person. Your positive energy and outlook allows you to focus on your work while the Telephone Rager has to contend with her own unhappiness. Who would want that burden?
The Deposition Obstructionist:
This SOB opposing counsel interrupts, objects to every question, talks to you in a condescending tone, smirks at you, etc. Here are some things you can do.
If you know you have a real SOB to contend with, I find it best to set the stage myself before the deposition begins, and I will kill the SOB with kindness. Arrive early. Greet opposing counsel with a handshake and sincere good morning. Bring muffins or cookies. I ask him if he would like some coffee or water and then I pour the coffee for him and his client. I know that this approach isn’t for everyone. But it works for me. And every time, even the grumpiest of opposing counsel softens up a little, and I can get my questions asked efficiently and effectively.
Notice all your depositions to be videotaped. This has an unbelievable effect on most SOB opposing counsel. If opposing counsel is really, really bad, tell him that you are going to have two video cameras for the deposition, one for the witness and one for him.
If the SOB starts off with a mass amount of objections, I let a few go by and then I wait, let the silence be and then say in a very calm and lowered voice, “Are you finished stating your objection? Now I’d like to continue and ask questions. If you continue to coach the witness and make unnecessary objections, I’ll stop the deposition and we’ll take this up with the court.” Have the number of the court ready to call. If the SOB continues to object to a question that is clearly proper and you have a pretty solid record to read to the court, stop and call the court and explain that you need the court’s assistance. If you can’t get through to a judge, stop the deposition, order the transcript and file a motion for protective order. With an SOB, always follow through.
The very rare but dangerous — Super Evil Opposing Counsel:
Take all of the worst behavior above and combine it with a sinister motive to cause you so much pain that you and your client will have no choice but to give in to his diabolical plan to take over the legal profession, and you have the Super Evil Opposing Counsel. He wants the bad reputation. He likes being known as mean and nasty. He thinks people will pay him inordinate sums of money because everyone knows that he will prevail by making their lives a living hell.
I say — Bring it on! Here is what you can do to set the trap.
Find out about the Super Evil Opposing Counsel and his tactics early in the case. Because this type of attorney is pretty rare in our state, he will most likely have already caused problems for other attorneys. When I came upon this creature the first time, I asked around about him. And because he was so hated, everyone I talked to was jumping to help and tell me whatever they could about every detail of their own experiences. I learned that this Super Evil Opposing Counsel (1) always files bar complaints against his opponent and sometimes their associates if they look vulnerable, (2) baits his opponent by getting her so worked up that the opponent does something stupid in response that he then uses against his opponent to remove her from the case, (3) files everything at 4:59pm on Friday, (4) calls your receptionist to find out when you will be on vacation and then saves up all motion ammunition to be fired/filed right as you are leaving. This is one evil dude.
Next, learn from the stories you gathered. Do not reach into his cage — you must refrain from taking his bait and that means you do not engage by responding with like-kind nastiness. He may never give you an extension and may never accommodate your request for a deposition date, but that doesn’t mean that you have to return the favor by refusing to do it for him. I never understand when lawyers say I’ll give you an extension because one day I may need to ask you for an extension. Maybe it’s my upbringing in a Buddhist family, but I believe you give your opponent an extension because it is the right and professional thing to do. If your opposing counsel does not extend the same courtesy to you, karma will take care of him. His own bad behavior will lead to his eventual decline and bad outcome. Focus on being the professional and always do the right thing.
Don’t act like him but think like him. Now that you have the benefit of knowing how he generally operates and you have steeled yourself to not be led into his dark cave, the way to beat this devil is to think like the devil. WWSEOCD. What Would Super Evil Opposing Counsel Do? If you can step into his evil mind, you can pretty much predict his next several moves and then you can cut him off at the pass. This is an example from my actual dealings with Super Evil Opposing Counsel: There were only a few key documents I needed from him. I requested just these specific documents. Super Evil Opposing Counsel dumped 20 boxes at my office door at 4:55pm Friday before Labor Day weekend. I didn’t complain or whine- I didn’t take his bait and engage. We dug through the boxes and could not find the few key documents that I knew should have been there. I wrote a short email “We received 20 boxes of documents from you late last Friday and we’ve gone through them but I can’t seem to find Document X, Y and Z. Did you produce those documents?” His answer the following Friday at 4:59pm: “What do you mean you can’t find documents? It’s not my fault you are INCOMPETENT and can’t see the documents I provided to you. I am NOT going to do your job for you. [blah blah blah].” I looked again but still could not find the documents and started thinking about filing a motion to compel and responding with a fight. Then I thought- WWSEOCD. What Would Super Evil Opposing Counsel Do? There was one box that contained some products which were at issue in a part of the case baby blanket covers wadded up inside the box. If I were Super Evil Opposing Counsel, I would hide the documents in there! Sure enough, at the bottom of the box, behind one of the cardboard flaps was a blank CD which contained the documents. In the end, (and I admit it was a little exhausting to have to constantly step into the world of evil thinking) I won the case and my client was awarded all of her attorneys’ fees. My biggest disappointment? Super Evil Opposing Counsel didn’t file a bar complaint against me. You see, that was the only thing I predicted he would do that he didn’t do!
Sanctions and Attorneys’ Fees
You can tell pretty early on if you have a repeat offender SOB. Create an email subfolder or a separate file folder and begin saving the offensive and berating emails and correspondence in the separate file. Make sure all of your responses to these are short, professional and exhibit-worthy and stick your response in the file. There may come a point where you can seek attorneys’ fees and you will have a nice gold mine to show the judge what you had to contend with behind the scenes and why you should be awarded all of your fees. If there are no attorneys’ fees available, you may be able to ask for an enhanced prevailing fee. And if there has been consistent egregious behavior, you’ll have everything you need at your fingertips to move for sanctions.
There are many types and degrees of the SOB opposing counsel. Most of the time, they don’t even come close to the Super Evil Opposing Counsel. When confronted by difficult behavior, first try to have compassion for even the worst of them. Who knows, maybe the bad behavior will stop. Having compassion will guide you through all your actions in the case: you won’t stoop to their level which means you won’t absorb their negative self-destructive energy, you’ll maintain control of your own reactions which means you control the case, and you’ll be able to focus on doing a really good job for your client which usually means a great result.
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