Bullies can be as prevalent in the courtroom as they are on the playground.
Wausau attorney Christine Bremer Muggli, a 35-year veteran of the legal industry, encountered a bully not long ago in her opposing counsel at a trial.
“For every single question I asked, he objected, made a face, yelled or told me I didn’t know how to ask a question,” the Bermer & Trollop attorney said. “Or, he refused to let his client answer.”
Some bullies are sneakier in their tactics, said Eric Hendrickson of Werner, Johnson & Hendrickson SC, New London. A recent opposing counsel was very genial off the record, Hendrickson said, but in depositions or court appearances he reduced Hendrickson’s clients to tears with his “nasty, rude, accusatory” statements.
Some instances of bullying go so far as the Wisconsin Supreme Court.
This year, state justices publicly reprimanded attorney Eric Brittain for conduct that readily could be described as bullying. According to court records, Brittain raised his voice and continued to try to address a court, disregarding the judge’s instructions and claiming her behavior was inappropriate. At a subsequent hearing, he again raised his voice, said the female judge’s statements were “ridiculous“ and suggested she suffered from a health issue that compromised her fairness.
The high court this year also issued a private reprimand of a lawyer who sent a series of late-night, under-the-influence emails to opposing counsel containing threats and vulgarity.
While Madison attorney Kelda Roys said she approves of the court clamping down on that type of behavior, it’s somewhat ironic, she said, given reports of rancor among the justices, ranging from calling someone a “bitch” to allegations of raised fists and putting hands around another’s throat.
Such behavior is “totally inappropriate in any setting, and certainly in the workplace,” Roys said.
Dr. Gary Namie, creator of the Workplace Bullying Institute in Bellingham, Wash., defined bullying as repeated, health-harming mistreatment including physical and/or verbal abuse, and offensive conduct that’s threatening, humiliating or intimidating.
Bullying typically results, he said, in targets suffering adverse health outcomes such as anxiety, depression, anger and hostility.
A 2010 study concluded that 35 percent of the U.S. workforce, close to 54 million Americans, said they’ve been bullied at work. Namie said he suspects that percentage would be even higher in the legal profession, specifically.
“We’ve got these rainmakers who are strong, egotistical and always credited with super-brilliance, who are always excused for their anti-social tendencies,” Namie said.
Lawyers don’t always possess great people skills, he said, plus the profession attracts some hyper-confident, narcissistic individuals.
Minneapolis attorney Adam Gillette, who teaches professionalism at the University of Minnesota Law School, said bullies look for weakness. New lawyers, especially those who’ve hung their own shingle because they can’t find employment, are prime targets, he said.
Women also are at a disadvantage, Bremer Muggli said, as she believes it was her gender that brought out the bully in her opposing counsel. A male attorney who co-counseled the case was treated much better, she said.
Roys introduced a bill to prohibit workplace bullying in 2011, requiring employers to adopt anti-bullying policies and penalizing those who don’t.
“We have a lot of laws protecting against certain forms of discrimination in the workplace, and that’s totally appropriate,” she said. “But we also have a right to not be harassed and abused at work, no matter who we are.”
Since 2003, 24 similar bills have been introduced across the country. None have passed.
Roys said critics of the Wisconsin proposal expressed concerns about imposing more liabilities on businesses. But she hopes that, over time, the anti-bullying at work movement will gain momentum. She compared it with sexual harassment, which took several decades for society generally, and lawmakers and courts specifically, to decide to condemn in the workplace.
If you’re being bullied by a co-worker, Namie said, sometimes you can convince the employer to act by pointing out the bully’s expense.
“Build a business case to convince someone that this person’s destructive interpersonal conduct actually is worthy of offsetting,” he said.
Calculate the cost of employee turnover, absenteeism, worker’s compensation, unemployment compensation claims, litigation and settlements, he said.
Building such a case starts with good record-keeping as the incidents occur, Roys added. Enlist the help of others who’ve been targeted or who have witnessed the bullying. And when you bring it up with management, remember that most employers don’t want to harbor an abuser.
When the bully is opposing counsel, Gillette advised taking the high road, as difficult as that can be.
“You just have to kind of plow ahead, and keep in mind that they’re trying to throw you off your game,” he said. “If you start responding in kind to whatever unpleasantness they’re throwing your way, you’re sort of letting them win.”
Make sure your correspondence and demeanor are at all times professional, Gillette said, because they potentially could become an exhibit.
Bremer Muggli said where she typically practices, in central and northern Wisconsin, judges will step in when someone’s behaving badly. So she tells bullying opposing counsel to stop or she’ll call the court.
Hendrickson said most judges in his area are likewise willing to sanction bullying. You just have to know your judge to know whether to reach out.
Gillette recommended videotaping depositions. And if the other coping mechanisms don’t work, he said, consider getting a senior partner involved.
“While it’s an added expense to the client, it might also offset the extra work the junior associate might have to do to work around the problem,” Gillette said. “It communicates to the other side that the senior partner is engaged and isn’t going to put up with sort of thing. It also provides a mentoring opportunity for the junior person to learn how to deal with the situation.”
Another useful tactic, Hendrickson said, is to insist that all communications be written, so there can be no misunderstandings.
Then, respond only to issues that are critical to your client’s case, Gillette said. Make frequent use of the phrase, “Don’t take my silence on a particular topic to mean I agree with you. Assume going forward that any issue I don’t address in response to one of your letters is an issue on which I disagree.”
In some instances, reporting obstreperous conduct to the Office of Lawyer Regulation is appropriate, as well, Gillette said.
Barbara Jones of Dolan Media Newswires also contributed to this report.