It might not always be a pleasure dealing with lawyers, but some are absolutely delightful. Sure, you may not always agree with their view of your client's claim, but they are always pleasant and professional. In short, they are the apocryphal lawyer you would actually have a drink with after you have lost your case, so long as they are buying, that is! I work with some lawyers like this and they make me quite envious and resentful.
Unfortunately, it does not take long for us to encounter difficult or impossible counsel. If you are like me, and can have a short fuse, such individuals can really set you off. It is one thing to observe that getting angry or reacting in kind is not in our client's interest; it is another to actually refrain from doing something short-sighted or stupid. We are not going to change these counsel who set us off, but there are things we can do to try to keep things moving along with a minimum of personal rancor.
I was recently reminded of this problem as a result of an e-mail exchange I had with a very good lawyer at a very good law firm who I am sure would prefer not to be involved in this article, and likely regrets being involved in this case with me at all. In an email, this lawyer accused me, quite surprisingly, in response to what I had thought to be a perfectly innocuous and reasonable email, of conducting myself inappropriately. Naturally, I took great umbrage. Thus commenced an unproductive e-mail exchange,copied to all other counsel on a multi-party file, which was a great waste of time and not in anyone's interest. The senior lawyer on the file came to my office and suggested that this exchange was not productive and that, given this file was going to be going on for a long time, perhaps I should make nice. I strenuously objected that I should be the one to make nice when I was unjustly being accused, in an email copied to all counsel, of inappropriate conduct. On reflection, however, I realized that perhaps I would have been better off not reacting so immediately. On further reflection, I realized that my personal pride was less important than not appearing as an ass to numerous counsel. And, after actually considering the matter, I realized what the problem was and how it was my innocent mistake that had set off the entire exchange.
I am not suggesting that this justified opposing counsel's original e-mail. My point is that I should have refrained from getting involved in this exchange in the first place. I should have put my own pride aside to deal with the issue in a more constructive manner. In the end, one polite e-mail directly to the lawyer in question resolved the matter.
Therefore, as a person who has reacted too quickly, or raised my voice too loudly, or sent intemperate e-mails and letters, I humbly offer seven suggestions on how to deal with such situations that, if followed, may make your files move more smoothly and may even take a little stress out of your life:
1. Be wary of your pride: We do not like to hear bad things about ourselves, particularly things inconsistent with our own view of ourselves. Nothing we do, however, will change the fact that, occasionally, through misunderstanding or for less benign reasons, we will be accused of improper conduct. Yes, you will want to, and perhaps must, respond to correct the record, but be judicious. Do not respond simply because your pride is hurt. Respond only if it is necessary.
2. Take your time and reflect: Do not respond immediately. Some people refer to a "24 hour" rule. While I do not subscribe to any particular time formulation, I do agree that you can respond to ridiculous accusations or statements in a couple of hours just as well as you can right now, if not better. Take some time to reflect. Talk to a colleague to see if the issue is worth getting upset about. Taking some time will help to differentiate those matters to which you need to respond from those matters that you should just ignore. Take a deep breath. If you have lost your cool, do not respond until you are calm. This is a good time to drop off your dry cleaning.
3. Always be polite and concise: If you do respond, the more polite and concise you can be, the more effective your response. You want to demonstrate that you are reasonable and the other party is unprofessional. If you respond in kind you will be unsuccessful in creating the record you want. Even worse, the opposing counsel may portray you as the unreasonable one. It is best to let a colleague see your response, and to be as constructive as possible in your response. You likely will have to work with this person for the rest of the file, and you may need them to be reasonable at some point in future settlement negotiations. You are not going to make someone who is impossible or argumentative into a different person, but you can avoid making the situation worse. No matter how impolite counsel may be, that is no justification for you being impolite. For example, if your temper is rising on a call with counsel, excuse yourself and say you will continue the conversation later.
4. Be firm, but do not argue: I am simply amazed at how many counsel, particularly some senior counsel, think that bullying and belittling is a good way to persuade opposing counsel of something. Either these lawyers have had success with this strategy in the past or they are just too dim to come up with any other way to get what they want. Regardless of the reason, it is important that you be firm and communicate, implicitly or explicitly if necessary, that you will not cave in to bullying. You can explain your position or simply disagree, but do not get sucked into an argument.
5. Try to avoid public exchanges: In a multiple counsel file, even if a lawyer has sent an annoying, accusatory e-mail to all counsel, try to respond just to the lawyer who has sent the e-mail. Sometimes this may not be possible, but getting into a spitting match essentially in front of all the counsel is not professional and looks bad no matter how right you are. My personal favorite is the lawyer who copies impolite correspondence to his/her client. I never respond in kind and would hope my clients would think poorly of me for doing such a thing.
6. Do not respond in kind: This is not the opportunity to bring up every grievance you have ever had with this lawyer, or even some of them. Similarly, do not threaten to cut off communication. You will have to deal with this person, and such threats look bad. Keep focused on the matter at hand. If telephone conversations are not productive, take a break from communicating this way for a while. I have, in the past, refused to answer calls from certain counsel and then just responded by e-mail. It was not my preference, but calls were a waste of our time and only made me angry.
7. Anger and frustration can be your ally: It is my experience that people who are angry, including myself, do not think very effectively and make stupid mistakes. It may be that some of those mistakes can be used to your client's advantage, within certain ethical boundaries, so keep your eyes open for such opportunities.
I do not pretend to suggest that I have practised consistently in accordance with the suggestions I have made here, but if you attempt to adhere to them, you likely will obtain better results for your own clients and have a little less stress in your life.
There always will be difficult people, and it is not always easy to react calmly. What I can advise you is that the more practice you get, the better you will be. Someday you may even be able to look back and be amused by how ridiculously counsel behaved in a situation. In the meantime, stay calm and remember that when you tell the story in several years you do not want to look like the jerk.
For more information, follow the source link below.
