How to Deal With Difficult Opposing Counsel

It's like the setup for a legal drama: the underdog lawyer is facing off against a slick litigator representing a large, faceless company that engages in shady practices. The slick litigator dishes out many dirty tricks, but the underdog lawyer eventually wins the case and justice is served.

This doesn't necessarily happen in real life, however. That slick litigator would likely win if the underdog lawyer doesn't know how to counteract the skulduggery.

If you're facing a similar situation, here are a few suggestions from LawsTrust.com on how to deal with it.

Do not engage on their level

The first rule in handling opposing counsel who use antagonistic, unscrupulous, or unlawful ploys is to never engage on their level. If your opponent has a strong case, they usually won't raise a ruckus; they'd simply file a motion to dismiss your case.

But when a lawyer engages in questionable tactics, it's more likely that they're just trying to intimidate you because their case doesn't hold water or they're trying to hide their insecurity.

Furthermore, returning the favour would most likely worsen the situation, and may end up hurting you (e.g. you say something incendiary on the record).

Document all interactions

Make sure you document all correspondence with difficult opposing counsel (especially those who use inappropriate language). If you can help it, avoid verbal discussions and limit interactions to the written form. This may serve as evidence in the future if you involve the court or report the lawyer's conduct to your state's bar association (more on this later).

To make email more official, consider placing the message in a PDF with your firm's letterhead. If circumstances force you to talk with the other party's obnoxious lawyer, see to it that you send an email afterward to follow up what was discussed, and then send a copy to your supervising attorney.

Notify your law firm

It would be immensely helpful if you inform your law firm about how an opposing side's lawyer is behaving. In addition to having their support, your firm's more senior lawyers can give valuable insight on how you can identify and deal with such tactics. New associates, in particular, may have difficulty in dealing with smoke and mirrors from grizzled veterans.

Study your case inside out

If a lawyer is fully prepared for his or her case, then there's no need to resort to antagonistic tactics. Thus, the best way to combat such an approach is to study your case thoroughly, including all the relevant facts, applicable laws, relevant witness statements, and admissible evidence. This would allow you to easily trump whatever monkey wrench the opposing lawyer throws in your direction without having to reciprocate any hostility.

Pick your fights

Some lawyers from the opposing party may use various underhanded tactics to win, such as:

Inundating you with document requests, deposition notices, and many other tricks that cause your client to incur more expenses and force you to settle for a smaller amount.

Making a host of pointless objections during the discovery phase.

Instructing their witness to refrain from answering your questions during deposition.

Take note that you don't have to fight tooth and nail in every dispute. You'll have to be more judicious in picking your battles. Choose those that actually matter and may lead to significant consequences.

Know your judge's rules and ways

Each judge comes with their own requirements, guidelines, preferences, and quirks that you need to contend with. Some require that documents over 25 pages long are delivered to them at least seven days before the court hearing. Others insist on the use of a specific font. It's your job to know these details because they would help you deal with difficult lawyers.

How? You can prepare better arguments, for instance, and avoid getting your motions summarily refused, particularly when trying to thwart the opposing lawyer's questionable methods.

Involve the court

There will be times when you will be forced to involve the court, especially when you're a) running out of options, b) desperate to win a crucial juncture which would substantially affect your case, and c) facing dirty litigation tactics.

Be careful, however; to combat such methods, you may have to file plenty of motions, which is technically similar to what your opponent is doing. As a last resort, consider consulting your local bar association, which may get in touch with the opposing lawyer to talk about their problematic methods.

Stick to the facts

If you do decide to approach the court or your local bar association, make certain that you always stick to the facts. The difficult lawyer will likely embellish details and/or hurl slanderous attacks to discredit you; but if you tell the complete truth and not allow yourself to be affected by your opponent, you would be able to convince the court or local bar association.

Inform your client

Filing your own motions to quash dirty tricks consumes time, especially if the opposing counsel is using a scorched-earth approach (i.e. overwhelming opponents with mountains of paperwork). As a result, you may have to bill the client additional time. This is why you need to tell your client about the opposing side's tactics--it wouldn't be fair to surprise them with a higher amount in their invoice.

Bear in mind, however, that your client may also tell you to counter with your own aggressive tactics. Assure the client that the opposing side's methods won't affect your ability to act on their behalf. What's more, reciprocating such actions would only add to legal costs and may lead to an unfavourable outcome.

Research opposing counsel beforehand

Take the time to find out more about opposing counsel. You can look them up online or ask your other lawyer friends. Considering how your opponent operates, there's a good chance they already have a reputation. Maybe she tends to settle at the last minute; or maybe he habitually files continuances to delay trials.

Admittedly, there's no assurance that opponents would stick to their tendencies, but researching beforehand may help you anticipate any shenanigans, and hopefully nip it in the bud before it does any major damage.

Stay calm and focused

As mentioned earlier, aggressive tactics may mean the opponent is hiding their insecurities or that their case isn't very strong. For this reason, you should stay calm and focused--you shouldn't let the opponent's bluster distract you from carrying out what needs to be done to win your case.