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What to Do When Opposing Counsel Won't Play Nice

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By Mark Wilson, Esq. on May 27, 2015 3:54 PM

We've written before about how lawyers do (or at least, should) extend each other professional courtesies. These small actions, like not objecting to reasonable discovery requests or scheduling depositions at convenient times and places, amount to treating opposing counsel with respect.

Some lawyers, though, think that any amount of cordiality amounts to surrender. They've got to the establish themselves as the Alpha Dog, or whatever metaphor their self-help books use. How do you deal with these crazy people?

1. Document everything

If it's becoming clear that opposing counsel is one of those guys or gals who refuses to budge, even when reasonable attorneys would, it's time to make a paper trail. Stop doing anything over the phone and start doing it through email so that if the time comes to ask for fees or sanctions, you've got a record of your adversary making life unusually difficult.

2. Don't strike back

Stooping to dilatory or silly tactics won't make the problem go away; it will just reinforce opposing counsel's misguided belief that every piece of litigation is a battle to be won or lost. Continue to be cordial, even if it's secretly galling you (that's what the racquetball court is for). This way, if you have to get the court involved (see number three), your hands are totally clean.

This doesn't mean you have to yield to opposing counsel: Continue to object whenever he or she does something ludicrous, but don't engage in those tactics yourself. Continue to calmly make your point so that you're not drawn into the fight. You're above that, remember?

3. Get the court involved

As your last resort, of course, you can go to the court, which has the power to back up its threats with monetary sanctions or orders in your favor (for example, opposing counsel's continuous refusal to produce documents can result in the court ordering the facts of those documents deemed admitted).

This only works if you're still in litigation, and many courts don't want it to be your first tactic; they'd much rather prefer that you try to solve the problem yourselves first. If opposing counsel becomes just too obstinate, then it's appropriate to make a motion for sanctions.

Don't worry: An opposing counsel who resorts to childish tactics doesn't have the upper hand. It's only a matter of time before that house of cards comes tumbling down.

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