A recent story of lawyers hating on lawyers dislodged a memory from my early days of practice and I thought I’d share it with you here.
For the most part, the lawyers I engaged with, especially the more seasoned lawyers, were always pleasant and professional outside the courthouse. Did we battle inside? Of course, but it never was anything other than showmanship in front of the judge and as soon as we left we’d be cordial and pleasant and professional. Sometimes our clients didn’t understand we could still be advocating for them but we didn’t have to ‘hate’ the other side in order to make our case. For some reason this irks some clients.
However, this one particular event stuck out for me and I wanted to share it because my client actually shut opposing counsel down in a way I could never have gotten away with.
I was pretty green and was representing a woman in a dissolution. She was a tall, full-bodied and a very mild-mannered and unemotional woman who could say “My mother just died” and “It’s raining out” with the same facial expression and monotone voice. It didn’t matter that her husband spent their mortgage money on phone chat lines for sex or that he would send pictures of his genitalia to women (polaroids back then, mind you). She would very calmly share it all with me, including the pictures, to make her case for diminution of marital assets. It was all fair game.
On our first court date my client and I were sitting quietly on one of the court house benches when a very small man, impeccably tailored and groomed, came up to me and asked if I was representing Mrs. John Doe, my client sitting beside me. I said I was and he immediately started yelling at me in a loud voice, wagging his finger in my face, and going on and on about how he was going drag my client through the mud and destroy me in court. I was so taken aback at his outburst that as he turned to walk away I inadvertently let slip, “Asshole.” He abruptly turned around and started yelling again, saying that what I just did was a basis for a grievance and on and on. All of a sudden, my client stood up, towering over opposing counsel, looked down at him and said in her mild-mannered voice, “She didn’t call you an asshole. I did.” He looked up at her, turned around and quietly walked away.
Incivility in our profession is rampant because there is little to no ability today for lawyers to distinguish between true advocacy and just plain ‘ol nastiness, yet they utilize nastiness under the misguided idea that they need to be nasty in order to be a strong advocate. More seasoned professionals generally know this is just not needed. In fact, it is a big hindrance to resolution for their client, referrals from fellow counsel, and their own general health and well-being.
I have always been pleasant to opposing counsel, unless they were abusive. It never undermined my ability to represent my clients first, foremost and always. In fact, on many occasions it actually helped my client because opposing counsel and I were able to talk like human beings.
Never be made to feel you have to be anything less than a pleasant professional in order to be a better advocate. If the other side is determined to push all your buttons, be cantankerous, obnoxious and uncooperative, there are always methods to achieve your goals for your client. There is always a work around. The truth is, you will be less of an asset to your client if you are a jerk to your colleagues.
Oh, and the resolution of the case? We never needed to go trial. Instead of retaliating against opposing counsel for the way he behaved to me, I very nicely gathered all my information, pictures, etc.—which would have cost his client his job since he was a teacher—about how the husband was squandering the assets and entered them into the record. I showed the evidence to opposing counsel with the assumption that he hadn’t seen it (which was true, because he blanched when he did), offered up my proposed settlement, and the matter was resolved. And in a show of good faith, my client then handed the pictures over to her now ex-husband to do with as he wanted.
Never believe for one minute that incivility should be your default position or that incivility is a show of strength. Oh, it can be a strategy in certain circumstances, but more often than not, it is a losing one for your client.
Susan Bonar Mayer is President and CEO of Litigation Abstract, Inc., headquartered in Missoula, Montana, with a sales and service office in Seattle, Washington. Susan graduated from Duke University with a degree in History. Since 1989, Susan and Litigation Abstract, Inc. have provided customized litigation support services to both public and private clients in the United States and Canada, including data and information management, discovery reviews, document and ediscovery productions and electronic trial support. Susan is an active member of Women in Ediscovery, participates in The Sedona Conference on ediscovery, writes a blog on litigation support and ediscovery, and frequently speaks on data management, ediscovery and electronic trial. Visit: www.litigationabstract.com. Susan can be contacted at: firstname.lastname@example.org. Twitter: @Litigation_Abs