Mastering the adversarial opposing counsel

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Shawn Healy, BridgeTower Media Newswires

In the idyllic view of a trial, one often pictures scenes from classic movies that portray two lawyers in a professional sparring match, each party making an articulate, compelling argument for his side.

They both use their intellect, their persuasion, and their best sales pitch to convince the judge and/or jury of the merits of their position, always respecting each other as professional colleagues on the opposite side of a case, never making it a personal attack.

After everything is said and done, the two attorneys could share a meal or drink and talk about how challenging and rewarding it was to spar with each other.

Unfortunately, the reality of trial work can involve a combination of legal arguments and personal attacks or intimidation coming from the opposing counsel.

It is that reality that has resulted in professionalism classes in law schools, mandatory “practicing with professionalism” presentations in Massachusetts, and CLE courses focused on training litigators how to mount an effective argument while maintaining their professionalism.

I have heard judges comment on the lack of civility between litigators in civil court as compared to the professional interactions between prosecutors and defense counsel in criminal court. So, what is one to do when he finds himself in a personally adversarial interaction with opposing counsel?

A good place to start is to keep some basic principles in mind. First, it is important to realize that the objective of intimidation or bullying is to influence what you are doing in order to give opposing counsel an advantage. It is simply a strategy.

Second, despite certain tactics feeling very personal, attempts at intimidation from an adversarial opposing counsel have very little to do with you. They are not miraculously able to see inside your soul to identify your vulnerabilities. They are using a technique that would be used against anyone they were up against with the hope that it will work against you.

Third, the main reason an attorney would use personal attacks or bullying techniques is because those techniques have been successful for that lawyer in some way in the past. In other words, the attorney tried something and got a favorable result, hence he is likely to try it again.

When you realize the mechanics and goals of an attempt at intimidation, you can step back from it, appreciate it for what it is, have a clear sense of your own legal strategy, and decide not to let your opponent dictate or influence your behavior in the case.

When we feel personally attacked, we naturally feel vulnerable and defensive. This sense of defensiveness leads us to behave in ways that we would not otherwise see as optimal. We might feel angry, self-conscious, in over our heads, afraid or filled with self-doubt. This defensiveness results in the opposite of how we ideally want to present ourselves and the case: confident, unwavering, intelligent, persuasive, professional and respectful.

If you want to develop your ability to withstand intimidation from opposing counsel, here are a few suggestions.

1. Tell yourself that if opposing counsel had a rock-solid case, intimidation would be unnecessary. Opposing counsel would simply win. Therefore, intimidation tactics are a way to distract you and put you off your game. If you were not a threat, the opponent would not bother to try to intimidate you. Try to interpret intimidation tactics as a compliment and not as a personal insult.

2. Resist the natural tendency to act defensively. If you feel vulnerable or defensive, take a step back to recognize those feelings and process them. Remember that our feelings are our reaction to our reality; they are not reality itself. Therefore, you can separate your feelings from the reality of the situation and choose to behave in a way that is not driven by your feelings.
When we feel attacked, we want to act defensively in the hopes that we will then feel more secure. Yet many times the best course of action when feeling bullied is to behave confidently, and then your feelings of security will follow.

3. Call the bluff. If opposing counsel is trying to dissuade you from pursuing an action by calling it frivolous and threatening to file a complaint with the disciplinary board, give the lawyer the number to call. If counsel threatens to embarrass you in court if you pursue a certain matter, respond that you will see it as an opportunity to develop resilience in the face of embarrassment.
4. Embrace your vulnerability. Instead of trying to convince opposing counsel that you are someone to be feared, communicate that you are just someone who is committed to your case/client. A great example of this is Peter Falk’s character, Detective Columbo. Columbo would never meet aggression with aggression; instead, he would say, “Oh, you’re probably right,” while all the time doggedly pursuing his goals. So, if opposing counsel calls you to yell and berate you about how you don’t know what you are doing, simply reply, “Oh, you’re probably right. But I do like to take every opportunity to learn, and I’m sure I’ll learn from my failures, too.”

Nothing frustrates a bully more than to know that his tactics are not working. Obviously, none of us is perfect, and there might be a grain of truth in the intimidating statements that opposing counsel tries to make. If you have doubts about your course of action, talk to a colleague or friend. Don’t let your opponent decide what you will do. You don’t work for that person.

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Shawn Healy is a licensed clinical psychologist on staff with Lawyers Concerned for Lawyers of Massachusetts. He also writes and presents on a variety of topics germane to the practice of law. He can be contacted at shawn@lclma.org.