Hostile lawyers: Advice from the experts

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Famous horror story:

In the first conversation with opposing counsel, after filing a copyright suit against the singer Meatloaf and his record company, the attorney said, “You are making the biggest mistake of your life.” Then, at the deposition of Meatloaf in New York, the attorney found out when Davis’ plane was leaving for Milwaukee and obstructed the deposition so he’d miss the flight.

“They apparently thought a country boy from Milwaukee in a two-lawyer firm wouldn’t know that it’s possible to catch a later flight. After I said I would stay overnight, and catch a flight the next day, they got much more cooperative.”

Advice: Be nice; be patient; document everything

“When dealing with a Rambo litigator, you must have unbelievable patience and willingness to document everything,” Davis says. “A favorite tactic of the Rambo litigator is to say one thing, and then deny it the next time.”

Davis advises taking copious notes and creating memos. “Cite chapter and verse what was said, and you’ll have a good advantage at putting the hostile attorney in his place.”

Davis notes that hostile litigators make their own life more difficult. “If people document everything you say and do, and insist on everything being in writing, it just increases your own workload.”

Most important though is not to get drawn into the fray. “Don’t become a litigator you can’t stand,” Davis says.

Famous horror story:

Gonring was the prevailing defense attorney in Johnson v. Allis-Chalmers Corp., 162 Wis.2d 261, 470 N.W.2d 859 (1991), the seminal case on when an attorney’s misconduct should be imputed to the client, such that dismissal is the appropriate sanction.

Advice: Life is too short to take it personally.

An attorney since 1982, Gonring says he doesn’t deal with as much hostility as he did when he was a new attorney.

“Some older lawyers can be condescending to new attorneys,” Gonring says. “And I was already 35 years old when I graduated law school, so I didn’t take too well to that. I took it too personally. I don’t anymore; life’s too short.”

Gonring emphasizes keeping your client in mind: “The bottom line is if you are expending energy fighting the attorney on the other side, it is rarely good for the client. Sometimes you have to take a deep breath, ask what is in the benefit of your client, and let it roll off your back. That is easier said than done, and I was not very good at it when I was younger, but these days it’s much easier.”

Gonring also emphasizes doing everything possible to avoid having to bring the dispute to the court. “Judges do not want to hear discovery disputes. Even if your motion is legitimate, they don’t want to hear discovery disputes, and even less, motions for sanctions.”

The most important thing to remember is that you don’t want to have to defend yourself.

“I want the issue to be the facts of the case,” he says. “The last thing I want to do is defend something I did that was personal. I will defend my zealous representation of my client, but I don’t want to defend a personal attack.”

Michele Ford
Crivello & Carlson SC
Municipal Law

Famous horror story:

Opposing counsel said if he didn’t get the deal he wanted, “I’m going to rip you a new asshole,” and slammed down the phone.

Advice: Assume the problem is situational.

Despite practicing since 1989, Ford says she has encountered only five attorneys that she would describe as “difficult.”

The other problems she’s had with opposing counsel she describes as “situational.”

“I want to emphasize that I always assume the problem is situational, and it generally is.”

Sometimes people have a bad day or are under professional duress, Ford says. She also notes that young lawyers sometimes use bravado to compensate for their lack of experience, but “it generally wears off,” if for no other reason, because it is a lot easier to practice law, and less costly emotionally, if you don’t allow anger or temper to enter into it.

Ford recommends a variety of tactics to defuse an opposing attorney’s anger: humor; asking,

“Do you need a break?”; simply asking what the problem is; and even asking pointblank on the record, “Do you have a personal problem with me?”

The final tactic, when all else fails, Ford says, is to require that all communication be in writing, so there can be no misrepresentation about anything that was said.

“But I will do everything I can to repair or maintain a relationship before it gets to that,” she said. “When you’ve reached the point where you’ve lost ability to communicate except in writing, it doesn’t do either client any favors.”