Dealing with the hostile lawyer

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Most trial attorneys have had the experience: dealing with opposing counsel who, for whatever reason, insists on being rude, unaccommodating or just outright nasty.

But understanding why lawyers can sometimes be jerks — and knowing how to deal with them when they are — can help keep you from falling prey.

Why they do it

There are many reasons why a lawyer may choose to be rude, said Elliot Wilcox, an Orlando-based trial attorney and the editor of the “Trial Tips Newsletter.”

Some such lawyers are “typical, Type A personalities,” Wilcox said. “They have to win and they live and die with each win and loss. Anything that attacks their case they take personally.”

Other lawyers lash out because they identify too closely with their clients, he said.

“I knew one public defender who lost 20 pounds in the space of a month and a half. Every time [a client] went to prison she took it as personally as if she were being sent.”

But some attorneys use bad behavior as a trial strategy in hopes of throwing the opposing lawyer off his or her game. And often it’s younger, less experienced lawyers who are on the receiving end.

“Younger attorneys may be a bit more nervous being in court,” Wilcox said. “Younger attorneys can just get rattled. [If] a lawyer takes advantage of that by raising a bunch of objections when he really doesn’t have to, it can throw an attorney off his game.”

How to handle it

Whatever the reason, handling a difficult lawyer can be tricky. But some attorneys have come up with ways to diffuse the fury.

“The first thing you need to do is take a second and breathe,” Wilcox said. “It may sound like an oversimplified, new age kind of approach. But it’s really important to just breathe and say to yourself: ‘I’m not going to let this affect me.’”

Other lawyers sooth savage trial attorneys with a smile.

“I usually try to kill them with kindness,” said Patricia Arias Musitano, a partner in
the Los Angeles office of Locke Lord Bissell & Liddel. “When you are being really nice, it’s really hard for someone to keep yelling at you without looking completely ridiculous.”

Sometimes, if an attorney is particularly vitriolic over the phone, a more direct approach is in order.

“I hang up,” said Barbara Dunne, a New York-based commercial real estate attorney. “When they call back because they think that we were disconnected, I start the conversation with ‘Are we in a better mood now?’ It usually works.”

Wilcox has a different, yet equally direct, approach when attorneys misbehave.

“When someone says something like ‘You have no case!’ or ‘I’m going to destroy you at trial!’

I simply say: ‘You may be right.’ And then I stop and I don’t say anything else.

“I know I am not going to explain my position to them, and they are not going to persuade me,” he continued. “So why waste the energy?”

Don’t be that lawyer

Everybody has a fuse, but it’s important not to become hostile yourself when dealing with other attorneys, Wilcox said.

The biggest reason not to blow up at your opponent?

“What goes around comes around,” Wilcox said.

Yelling at a lawyer, or being difficult and unaccommodating with routine matters like requests to extend discovery deadlines, will only come back to hurt you later.

“You are going to deal with that same attorney again and you never know when you are going to need help from that person,” Wilcox said. “If you make an enemy, those memories linger.

If you are professional with somebody, that is the person who is going to end up helping you out down the road.”

Questions or comments can be directed to the writer at: [email protected]