By Pari Karim and Jennifer Ballard
Everyone has had to deal with “that guy.” You know the one. The onewho turns every litigation decision into a battle royale. The one whomakes threats about lawsuits, deadlines and strategies. You name it thisperson will threaten you with it. The loudest, angriest attorney in thecourthouse – and that’s saying something! Here are eight approaches tobetter handle thedifficult lawyer.
1.Point out Common Ground
Nothing takes someone off guard faster than telling them youagree with them. And nothing will confound the difficult opposingcounsel like telling them there is no fight when they are gearedup for one. Of course, this isn’t to say you should just give in, butemphasizing points of agreement that exist is a great way to disarman opponent. Pointing out common ground in front of a judge willmake you look more reasonable than the attorney that is tryingto “win” every point. By taking areas of common ground off thebattlefield, you will also be able to increase efficiency in litigation,which makes clients happy.
2.Don’t be Afraid to Ask Why
Just because someone is making demands and giving ultimatumsdoesn’t mean you have to answer them without question. Insteadtry answering them WITH a question: “Why is this so important toyou?” or “Why do you want ‘x’?” There is only one way to satisfya position, but there may be many ways to satisfy the underlyinginterest – some of which may provide mutual gain!
3.Separate the Person from the Problem
It’s easy to get sucked into an adversarial relationship whenthe system is by its nature adversarial and opposing counsel isapproaching you as a competitor. Remember, opposing counselisn’t the problem; it’s the tactics they are employing that areproblematic. Try to frame interactions without blame or judgmentof the person, but highlight the actions instead. This will decreasethe likelihood of enflaming them further, and will lead to morepeaceful interactions.
4.Focus on your Interests
Another way to say this is “keep your eyes on the prize.” Focuson what you are trying to get out of each interaction and not onwinning each presented battle. If counsel is trying to control thebriefing schedule, let them, as long as it’s not impacting yourinterests (expediency, ability to respond, etc.). They expect abattle, but don’t get caught up in the small stuff.
5.Don’t Fall for your Assumptions
It’s so easy to think we know what is motivating our adversaries.Every action and statement from the other side has a purpose andbecause of past experiences it’s easy to jump to conclusions as towhat opposing counsel and his client are up to. That motion thatwas filed at the last minute? He just wants you to be unprepared.That continuance they asked for? They’re just delaying mattersto be a thorn in your side! Sometimes your assumptions arecorrect. This helps you to maximize the efficiency in which youare assimilating information. Many times they are not incorrect.Perhaps the motion was filed at the last minute because of newinformation. Maybe that continuance was asked for to build insome more time to explore settlement options. Believing incorrectassumptions just escalates conflict. Recognize when your reactionis to factual information and when it is based off of assumptions.This will help you act in a more calculated and reasonable manner.
6.Take a Calculated Approach
Just because we have an adversarial system does not mean thatevery situation requires a competitive approach. Competitiveapproaches are great when you don’t have to have an ongoingrelationship with the person. If it is someone you will be facing inthe future, because litigation will likely drag on or because yourlegal community is small, try to take the ongoing relationship intoconsideration. Know when to avoid or even accommodate (see #4)and know when compromising or collaborating might be a betterapproach. Compromising is a great strategy for making quickdecisions and improving the ongoing relationship. Collaboratingopens options for win-win resolutions by allowing both sides tobe heard and engage in dialogue (sometimes with the help of amediator or other neutral). When you respond instead of react, youhave the upper hand, regardless of your approach.
7.Control the Conversation by Reframing
The difficult attorney likes to make demands and inflammatorystatements. He likes to be in control of the conversation. You canflip the script by using a reframe. Change complaints to requests.Instead of focusing on what they are dissatisfied with, focus theconversation on what it is they would like to have happen. Restatepositions as interests. They may be demanding one thing, butwhat are they really looking for? Have a conversation about howto satisfy both sides’ interests. Define individual goals as jointones. You will automatically change a competitive situation intoa collaborative one. Change the focus from the past to the future.Next time opposing counsel says, “I’ll expect an answer by the endof the day of the day.” You can say, “I am glad that we both wantto have this matter settled quickly.” Then negotiate a timeline thatworks for both of you.
8.Pick up the Phone
It’s so easy to miscommunicate via electronic communication.Sometimes that difficult attorney is more difficult with keyboardcourage and the angry voice you use when you read their e-mails.Perhaps word choice or shortness in response to you is increasingyour conflict. Picking up the phone is faster because you can engage in a dialogue, allowing you to respond and ask questionsimmediately. Hearing each other’s voices allows you to betterdetermine when someone is making an offer and when someoneis making an ultimatum, being difficult or simply trying to resolvean issue, and ultimately gives you more information about whattactics you should take to respond.
Jennifer Ballard is a director for the WBAI and is a Partner atHinshaw & Culbertson.
Pari Karim is the Training Director at the Center for ConflictResolution, where she leads a 40-hour Mediation Skills Training, aswell as workshops in Conflict Management, Negotiation, SettlementSkills, and Mediation Advocacy.Find out more about CCR atwww.ccrchicago.org.
WBAI members interested in CCR’s 40-Hour Mediation SkillsTraining qualify for a discounted rate! Call 312-922-6464 x15 formore information.
This article originally appeared in the WBAI Winter 2016 Newsletter.
