Anyone who has practiced litigation for any length of time knows one universal truth – opposing attorneys can be the bane of your existence. Even the most professional among them can very quickly dampen your day with a snide remark, a baseless accusation, or a curt phone call. This is not surprising, of course. The two of you are naturally diametrically opposed when it comes to the litigation matter than you share.
Instead of harboring unproductive ill-will, it is often helpful to step back, look at their behavior objectively, and learn from what they do–the good and the bad. In this article, I explore some of the lessons I learned from my opposing attorneys through the years, as well as some tips from other legal professionals.
#1: Attitude is everything
It doesn’t matter what your area of specialty is, if you work in litigation, your life will be stressful. During the busiest times, relationships with opposing counsel can be especially strained. If you keep a great attitude throughout the case, however, your life may be a lot easier.
I recall one opposing lawyer in a particularly contentious trademark infringement battle. The clients hated each other, the facts were hotly contested, the discovery battles were fierce, and there were millions of dollars at stake.
Nevertheless, each time I spoke with this individual, he was upbeat, friendly, and as accommodating as he could be. He held his ground in our battles, but he remained friendly throughout. As a result, he got more concessions from our team than he would have otherwise.
#2: Graciousness goes a long way
The reality of litigation is that cases can last for years. During that time, legal professionals have real lives to lead outside the office. People get married, they go on vacations, they get too busy to handle the workload.
When these life events occur, it is wonderful when opposing counsel can be gracious about them. If extensions are given to help opponents get through life stuff, that kindness will never be forgotten.
#3: Everything you say may be used against you
This is a lesson I learned as a very young attorney. I was at a large firm, months removed from law school, and I was about as green as a new lawyer can be. During a phone call, opposing counsel asked me a question about our side’s version of the case. I was not prepared to answer the question, but gave it a shot anyway. What I said was wrong.
You better believe that attorney recounted our conversation in a sworn declaration that was attached to a motion to compel discovery. I then had to admit in an opposing declaration that, in essence, I was young, dumb, and wrong. It was not my best moment.
If you don’t know something, don’t try to fake it. Your mistakes can and will be exploited by your opponents.
#4: Reputation matters
This point is incredibly important. As you work your way through your legal career, you will automatically start building a reputation in each venue where you practice. Your reputation will follow you in your interactions with other legal professionals, judges, and court staff.
When your opposing counsel has a solid reputation in the legal community, she is much more likely to receive concessions from the court and from other attorneys who may be involved in the case. The same goes for everyone on your team. You should strive to achieve a reputation for honesty, timeliness, and professionalism. It matters more than you may think.
#5: Don’t make threats
From time to time, we all come across those opposing attorneys who are outlandish in their behavior. While they are undoubtedly irritating to deal with on a day-to-day basis, their behavior can actually be harmful to the profession.
The worst among them, of course, are those attorneys who lob inappropriate threats. The best thing you can learn from these characters is to simply avoid being like them.
#6: Be human
This tip is perhaps the most important of them all. I recall working on a case out of San Francisco, which was several hundred miles from my office. The parties had case-critical depositions scheduled for every day of the week.
Just before the most crucial depo was set to begin, I got a call at the hotel. My father had just been diagnosed with a terribly aggressive cancer. I showed up to the deposition with tears in my eyes. My opposing counsel, who had been nothing short of a jerk for several months, pulled me aside and asked what was wrong. I told him and he very graciously put a stop to the week’s proceedings so I could travel to be with my family.
Later in the case, that same attorney was himself diagnosed with cancer. We cried together and shared our fears. We still fought the case as hard as we could, but there was a mutual respect that was beyond measure. Sometimes the best thing you can do for someone else is to simply be real with them.
About the author
Jennifer Anderson practiced business litigation in California from 1999 to 2016. When she’s not writing from her floating cabin on the Columbia River, she can be found hiking or kayaking around the Pacific Northwest.
