{ "media_type": "text", "post_content": "How do you deal with crazy opposing counsel? I have one in particular that misconstrues facts and attacks my character in motions. I don’t want the Court to think I’m acting in bad faith but also don’t think pointing the finger back at them is persuasive.", "post_id": "60fa0a921fd35900247ccd49", "reply_count": 13, "vote_count": 5, "bowl_id": "552d1d24dc1c586b09d2d052", "bowl_name": "Law" }

How do you deal with crazy opposing counsel? I have one in particular that misconstrues facts and attacks my character in motions. I don’t want the Court to think I’m acting in bad faith but also don’t think pointing the finger back at them is persuasive.

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Demonstrate with exhibits and logical, cogent arguments how they misconstrue facts and don’t respond to the attacks on your character unless the court asks you to. Keep your focus on the issues, the facts, and the law. If he/she threatens criminal prosecution in a civil proceeding then gather what l proof you have and report them to the bar. Otherwise, they go low and we go high.

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This is the way. The best and most satisfying method for deterring bad behavior is to win on the merits.

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Act crazier

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Actually just had a conversation about this with a judge today. His position was don’t engage. Don’t try to prove the point. They disregard everything. Unless it’s something where they said they would do something and aren’t. Or are saying you said you would do something but didn’t.

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Don’t point the finger back. Respond to his crazy accusations with a clear and logical recitation of the actual facts and attach emails where you can. Most judges aren’t dumb and will recognize what’s going on.

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C1: Thanks for your perspective. I guess it just isn’t my style to attach the emails, but I see where you’re coming from. Perhaps to some extent, this is a “know your judge” situation.

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I disengaged and told OC I’m done talking and that everything moving forward will be through the court, before the judge. Didn’t react right away but it ended up working. I did before a court call and we ended up with agreed order

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You always want to be appear reasonable. But you also need to protect yourself. I generally prefer getting opposing counsel on the phone (usually easier to work things out). With opposing counsel who can’t be trusted, I try to avoid getting on the phone. I will only do so if it is really necessary or the rules require an oral meet-and-confer. If forced to have a call, I will send 1 very clear and detailed emails immediately after any call. In the email, I will note that if they disagree with any part of the email they should send an email response detailing any such disagreement in writing by x day. When they don’t say anything, I have a clear record of what transpired. If they make up something, it at least forces them to commit to a position soon after the cool that I can then clear up if need be in further emails. I will then attach these emails as necessary to filings with the Court. This usually has the result of showing the Court that, despite all your reasonable efforts, how difficult it is to deal with opposing counsel and how they are manipulating what was said, etc.

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Your timing is interesting. This morning, I resolved a difficult situation by picking up the phone and talking with opposing counsel for 5 minutes. Afterwards, I spent a moment thinking about how much can be accomplished with a brief phone call. But you’re absolutely right: that assumes you can trust opposing counsel. And if you can’t trust them, you want to pin them down by getting everything in writing. I’m reminded of a case I worked on as an associate. Opposing counsel was a notoriously awful lawyer. So bad he’s been the subject of critical articles in mainstream media. Anyway, I’d mostly been working behind the scenes. The partner in charge of the case on our side tended to be unreachable when he was out of the office. Right before leaving town, he ducked an email from opposing counsel by essentially telling them, “I’m too busy to deal with this right now, talk to my associate if it’s important.” Yeah, he pretty much dumped his problem on me. So I got a call from opposing counsel. Shortly thereafter, he sent me an email that completely misrepresented several things I’d said in an attempt to “make a record.” Stuff like I’d allegedly promised to make our client available for a deposition with less than a week’s notice. Uh, no, that’s not happening, especially when the client is over 1,000 miles away. I knew what he was trying to do, so I responded and politely called B.S. on his misrepresentations. The subsequent back-and-forth at least managed to stall things until the partner returned to the office. I told the partner what had happened. He expressed some sympathy, but suggested I shouldn’t have communicated with opposing counsel at all. I had to remind the partner that he was the one who redirected opposing counsel to me. (sigh)

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Can be hard because some clients want to see you fight back aggressively but I totally buy into the comment re talking with a judge that they don’t give it any attention or weight. Just have to be able to get that across to certain clients

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