In a previous post, we examined whether an aggressive lawyer is an effective lawyer. In this post, we discuss how to deal with an aggressive / difficult lawyer on the other side of a case.
If you do enough litigation work, whether it is family, civil, or criminal, sooner or later you will find yourself dealing with one or more difficult lawyers. Communication between the lawyers will turn from hostile to non-existent. There won’t be any courtesy, no extensions or cooperation in scheduling, and everything about the case will become a point of contention. Tensions will run high as the attorney stalls the progress of the case and otherwise makes things miserable from start to finish. Worst of all, if you get swept up in all of the lawyer’s shenanigans, your client may suffer the consequences from increased legal fees to unfavorable rulings from the court. Before we list some practical pointers for dealing with a difficult lawyer, its helpful to recognize some of the “types” of challenging lawyers.
Here are four types of difficult lawyers that we commonly see:
1) The Courthouse Bully – This type of lawyer is rude to you and your client, they make threats, and they attempt to control all aspects of the case. This lawyer will shout at you and your staff over the phone if they don’t get what they want when they want it. He or she will threaten you and your client with sanctions for your “frivolous” claims. No matter how awful their client may be, they remind you that their client is a saint who is being wrongfully persecuted by you and your client. Also, in court, this lawyer will divert the court’s attention from the case itself by accusing you and your client of every misdeed imaginable. This lawyer will do whatever it takes to muddy the judicial waters and the expense of everyone, including themselves and their own reputation.
2) The Obstructionist – This lawyer is negative and uncooperative about everything. No matter what you suggest to resolve the case or to even make the trial of the case easier for everyone, this lawyer will disagree. As much as this lawyer disagrees, he or she has no alternate solutions of their own. Phone calls and correspondence to this lawyer go unanswered. Also, even the most mundane of tasks, such as scheduling depositions, turns into a complete nightmare. Overall, this lawyer will do everything they can (mostly by doing nothing) to make sure the case drags on indefinitely and expensively.
3) The Paper Tiger – Although this lawyer will do little or nothing to cooperate or move the case forward, they will spend a lot of time writing you lengthy letters about how poor your case is, how your client can’t win, etc. In these letters, this lawyer will demonize your client and your case ad nauseam. Just to make sure you waste your time reading these empty communications, they will insert a line or two about an upcoming hearing date or something that is actually meaningful. This lawyer also is inclined to file an endless stream of motions. This lawyer won’t communicate with you to get minor issues resolved. Instead, everything becomes a subject of a motion before the court. By the time the court hears all of these motions, it has no idea which lawyer to be irked at and gets frustrated with everyone involved in the case.
4) The Blusterer – This lawyer has no clue what the case or the law is about. To make up for his or her incompetence, this lawyer will be a blow-hard, over-the-top, zealous advocate with no apparent goal in sight such as a resolution of the case. In fact, they only goal they seem focused on is making your work miserable.
These are but a few of the types of difficult lawyers you may encounter. Regardless of which type of difficult lawyer you are dealing with, the result is always the same. Major frustration bordering on outright anger for the lawyers, the clients, and sometimes the court. Although changing the difficult lawyer’s behaviors is oftentimes out of your control, you can control how you approach that lawyer and the case. Here are some practical tips for dealing with a difficult lawyer:
1) Be Prepared – As the boy scouts say, “Always be prepared.” More often than not, the difficult lawyer is trying to distract you from effectively representing your client. No matter what that lawyer does, focus on your client, the facts, and the law. Let the difficult lawyer waste their time (and their client’s money) on hostile and unproductive acts. Remember, at the end of the day, there simply is no substitute for preparation.
2) Stay Cool – Remember, the difficult lawyer is trying to rattle your cage, throw you off-track, etc. The worst thing you can do is engage in the same tactics as the opposing side and to lose your composure. Stay civil and continue to extend courtesies as you would any other lawyer. Don’t let the difficult lawyer waste your time arguing over mundane issues. If the lawyer will not cooperate in setting a deposition, send a nice letter giving them a reasonable time to respond and notifying them that if they do not, you will otherwise schedule the deposition anyway. If they will not produce discovery materials, search for the path of least resistance such as sending subpoenas to third parties for the information.
3) Make it Written; Keep it Professional – If you are dealing with a difficult lawyer, there is a good chance that at some point the court may be called upon to intervene. Therefore, document your attempts at scheduling and for cooperation. Remember, whatever you put in writing is likely to be read by the court, so keep it professional.
4) Pick Your Battles – Remember that all of the time you spend arguing with or focusing on the difficult lawyer is time spent on issues that, in the end, will not likely win the case. Also, when dealing with a difficult lawyer, its typical for the court to intervene to schedule matters and resolve other disputes. Although you may be tempted to bring the court’s attention to everything the other lawyer is doing to obstruct the case, don’t do it. Inevitably, the court will get tired of all the squabbling, it will not have the time or patience to figure out who is doing what, and may take a dim view of everyone in the case including the lawyer who is acting professionally.