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Grace Under Fire – Opposing Counsel Who Behave Badly
Question: How do you handle dealing with opposing counsel that are jerks, especially if they resort to cheap tactics like threatening sanctions against you or name-calling?
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Question: How do you handle dealing with opposing counsel that are jerks, especially if they resort to cheap tactics like threatening sanctions against you or name-calling?
Litigation attracts personalities. Most are professional, some are formidable, and a select few confuse strong advocacy with performative hostility. The latter will be found deploying a variety of tactics and general behaviors that we all despise. When faced with their uncontrollable, misplaced anger and rage, unnecessary self-righteous soliloquies during depositions, or even worse, lying or manipulating discovery or filings to seek sanctions or just indulge in schoolyard name-calling—the question isn’t whether to respond, it’s how.
I believe the best approach balances civility with tenacity. That’s easier said than done and it often requires you to examine yourself first. If you are the type to react quickly and respond aggressively to such moves by the other side, you will need to learn to take a breath. Literally. Learn to breathe, take a break, walk away if possible. Whatever you do, you have to stop playing the tit-for-tat game because that response is almost always about protecting your pride more than your client’s case.
As John Travolta advised in A Civil Action: “The single greatest liability a lawyer can have is pride… Pride has lost more cases than lousy evidence, idiot witnesses and a hanging judge all put together.”
Let’s be honest, we know the lawyers that fall into this category. We know the lawyers who get under our skin, who we dread are going to be on the opposite side of us needling and poking at every opportunity. Because of that, your emotions are primed to respond in kind—but for you, calmness and a measured demeanor will be your friend. A lawyer who keeps their cool projects credibility—and maybe more importantly, confidence—to the court, the client, and everyone else watching. Refusing to engage at the same emotional frequency deprives them of oxygen.
For you, the one who typically throws a punch back, choose restraint. Prepare for the people who rattle you—steal yourself before depositions, hearings, or discovery conferences so that when the jab comes your way, you can bounce back with a calm face and project poise. Think: Oddjob smiling after James Bond throws a punch in Goldfinger or the German soldier in Raiders of the Lost Ark who seems unfazed by Indiana Jones’ assaults. In other words, this is not passivity. It is deliberate composure.
For those of you who struggle to find the words, that is okay. This is not a reality show or audition, so your ability to deliver a quick one-liner is not a requirement. Your job is to ignore the little slights, condescension, or posturing. Take a breath and silently tell yourself that the person slinging mud will get karmic payback someday.
No matter who you are, if there is a legitimate criticism in their ramblings, focus on that. Wait for them to finish and provide a response, brief and factual. If they have truly rattled your cage and you cannot think straight, thank them for raising the issue (even if you are not thankful) and ask for a break, if possible. Or if it is an improper place or time to address the issue raised, state firmly that you will be happy to address the issue at another time and ask if they are free the following day.
Here are some examples of times when a lawyer can derail litigation with unnecessary bluster and suggested responses:
I believe the best approach balances civility with tenacity. That’s easier said than done and it often requires you to examine yourself first. If you are the type to react quickly and respond aggressively to such moves by the other side, you will need to learn to take a breath. Literally. Learn to breathe, take a break, walk away if possible. Whatever you do, you have to stop playing the tit-for-tat game because that response is almost always about protecting your pride more than your client’s case.
As John Travolta advised in A Civil Action: “The single greatest liability a lawyer can have is pride… Pride has lost more cases than lousy evidence, idiot witnesses and a hanging judge all put together.”
Let’s be honest, we know the lawyers that fall into this category. We know the lawyers who get under our skin, who we dread are going to be on the opposite side of us needling and poking at every opportunity. Because of that, your emotions are primed to respond in kind—but for you, calmness and a measured demeanor will be your friend. A lawyer who keeps their cool projects credibility—and maybe more importantly, confidence—to the court, the client, and everyone else watching. Refusing to engage at the same emotional frequency deprives them of oxygen.
For you, the one who typically throws a punch back, choose restraint. Prepare for the people who rattle you—steal yourself before depositions, hearings, or discovery conferences so that when the jab comes your way, you can bounce back with a calm face and project poise. Think: Oddjob smiling after James Bond throws a punch in Goldfinger or the German soldier in Raiders of the Lost Ark who seems unfazed by Indiana Jones’ assaults. In other words, this is not passivity. It is deliberate composure.
For those of you who struggle to find the words, that is okay. This is not a reality show or audition, so your ability to deliver a quick one-liner is not a requirement. Your job is to ignore the little slights, condescension, or posturing. Take a breath and silently tell yourself that the person slinging mud will get karmic payback someday.
No matter who you are, if there is a legitimate criticism in their ramblings, focus on that. Wait for them to finish and provide a response, brief and factual. If they have truly rattled your cage and you cannot think straight, thank them for raising the issue (even if you are not thankful) and ask for a break, if possible. Or if it is an improper place or time to address the issue raised, state firmly that you will be happy to address the issue at another time and ask if they are free the following day.
Here are some examples of times when a lawyer can derail litigation with unnecessary bluster and suggested responses:
- After discovery conferences or calls, memorialize the salient points: “As discussed, you declined to provide dates for the deposition this month and stated you would seek sanctions if we noticed dates unilaterally. Our availability is as follows…” This is not performative; it’s prudent. If motion practice becomes necessary, you will be glad you built a clean, professional paper trail rather than a screenplay.
- Sanction threats can be scary, but they can also be met with a thoughtful assessment to ensure you are protecting your client and the case. Ask yourself: Is there a rule at play that could plausibly support sanctions? Are we meeting our obligations? Do we have a reasonable, documented basis for our positions? If so, keep walking. If not, adjust course quickly. Note your compliance, cite the meet-and-confer steps you have taken, and invite a practical path forward. And let your client know sooner rather than later about any sanction threat.
- During depositions, if they coach witnesses or obstruct questioning, calmly put the conduct on the record, ask for a ruling or admonition if appropriate, and continue. Abusive behavior thrives on escalation; it wilts under a steady spotlight and a court reporter’s keyboard.
- Insults are the laziest tactic. The best response is usually none at all. If you must respond, do so once, with economy: “We will not engage with personal remarks. Our position is as follows…”
- If you need to file a motion, tailor the briefing around the rules, the facts, and the remedy. Quote conduct sparingly; show, don’t tell. Judges know a jerk when they see one. And if they don’t, then they probably don’t care if there are 10 more examples you can provide.
Judges don’t want to referee playground spats; they want to solve problems. Similarly, your client did not hire you to win the banter. They hired you to win the case. There is no verdict or award given for best zinger delivered under Rule 26.
Finally, be kind to yourself. Difficult opponents drain our energy. Protect yours. Schedule calls when you can be calm. Bring a colleague to contentious meetings to keep the temperature down (and the notes accurate). And remember: Don't fight fire with fire, fight it with water … and proper documentation.
Mary Butler is a shareholder at Bullivant Houser Bailey in Seattle. She defends clients against claims of medical malpractice, wrongful death, and catastrophic injury and also leads the firm’s Sports Law and Maritime practice groups. She helps clients navigate litigation with efficiency, building trust throughout the process by effectively communicating at each step. Whether she is asked to defend a doctor in a med mal case or an organization in an abuse case, Mary uses her tenacity and empathy to develop a practical case strategy to protect her clients.
Mary will answer your question. While Mary's background is primarily in insurance defense, feel free to ask questions on coverage or other legal areas and Mary will seek input from others as needed. Questions can range from legal topics, general professional questions, or on personal issues that touch on professional obligations.
Please do not include case-specific details that might breach client confidentiality or other ethical rules. Depending on the number of submissions, Mary may not be able to answer all questions submitted. Your name will remain anonymous in the WDTL Defense News, even if you provide contact details, unless you specify that you want your name, title, and/or firm name included.
Finally, be kind to yourself. Difficult opponents drain our energy. Protect yours. Schedule calls when you can be calm. Bring a colleague to contentious meetings to keep the temperature down (and the notes accurate). And remember: Don't fight fire with fire, fight it with water … and proper documentation.
Mary Butler is a shareholder at Bullivant Houser Bailey in Seattle. She defends clients against claims of medical malpractice, wrongful death, and catastrophic injury and also leads the firm’s Sports Law and Maritime practice groups. She helps clients navigate litigation with efficiency, building trust throughout the process by effectively communicating at each step. Whether she is asked to defend a doctor in a med mal case or an organization in an abuse case, Mary uses her tenacity and empathy to develop a practical case strategy to protect her clients.
Mary will answer your question. While Mary's background is primarily in insurance defense, feel free to ask questions on coverage or other legal areas and Mary will seek input from others as needed. Questions can range from legal topics, general professional questions, or on personal issues that touch on professional obligations.
Please do not include case-specific details that might breach client confidentiality or other ethical rules. Depending on the number of submissions, Mary may not be able to answer all questions submitted. Your name will remain anonymous in the WDTL Defense News, even if you provide contact details, unless you specify that you want your name, title, and/or firm name included.
Submit your question for the next issue of the Defense News.
Ask anonymously at https://form.typeform.com/to/Wwccs8iK.