New Attorney? Don’t Get Intimidated by Opposing Counsel

Being a new lawyer can be overwhelming, regardless whether you are a solo or work at a big firm. One way to help ease the transition is finding a mentor to show you the ropes.

Even with a mentor, one of the challenges for new lawyers is interacting with opposing counsel. A common complaint among new lawyers is how poorly they are treated by more experienced opposing counsel. Here are some tips to help you stand your ground and reduce the intimidation factor.

The Game Within the Game

Law school does not teach you about the game within the game—the tricks and mind games that lawyers use during a case. As a young lawyer, you may wonder why anyone would resort to playing games instead of playing by the rules or litigating the case.

For many lawyers playing “games” is part of litigation and part of being a lawyer. It just comes with the territory. Also, in some types of cases, the best option for opposing counsel may be to resort to gamesmanship, as opposed to engaging in litigation. In other words, they are simply playing the best hand that they have.

Frankly, just knowing that lawyers play mind games is a critical insight. You should never blindly believe everything opposing counsel says, whether it is a fact about the case, what the law says, or what the rules say. They may be telling you the truth, and they may be trying to help you. But confirm that on your own time and with another lawyer on your side of the equation. Otherwise, blindly relying on opposing counsel can drastically alter the course of a case if you don’t know any better.

I can think of a long list of things that opposing counsel threatened or promised to do, 99% of which never actually happened. At the time, however, those threats caused me to underestimate or re-think my case or strategy—which is exactly what they wanted. I could only get back on track when a trusted colleague would reassure me that I was simply being hazed.

Keep your head on a swivel.

Stick to the Rules—and Your Interpretation of Them

If opposing counsel has missed a deadline, omitted certain discovery documents, or generally seems to manage their case with no regard for the rules, do not be afraid to call them out.

The rules are the rules. While certain rules may be treated more like guidelines by some lawyers, you are not bound to share their interpretation. They might be testing you, they might be used to flaunting the rules with no repercussions, or they might not be paying attention.

In fact, even battle-tested litigators can get lazy about reading the latest changes to the rules of procedure. Younger lawyers, however, tend to check the rules every time there is an issue. And with that in mind, there is a good chance that you know more about the current rules than opposing counsel.

If something seems amiss, double check the rules, and if necessary, call out opposing counsel. The rules are there for a reason. And as a young lawyer, sticking to the rules can be one of your biggest advantages.

Don’t Second Guess Your Opinion of the Case (or Don’t Make It Obvious When You Do)

When you get a cold call from opposing counsel wanting to talk about your case, resist the urge to engage in an impromptu summary judgment hearing. Opposing counsel wants to make you feel uncomfortable. They want to push you around and they want to test you. To the best of your ability, don’t engage, and just redirect the conversation.

Think of the phone call as an opportunity for you to gather information on how they view the case. Ask them why they are calling. Ask them what they want to talk about. Play dumb and say you don’t understand their concerns and ask them to explain it in more detail. You don’t need to deflect; you just want to flip the script on them.

In the majority of my cases, I represent a consumer harassed by a debt collector. In my early years, I would frequently get a phone call from opposing counsel blabbing on and on about how my case is terrible, telling me I have no idea what I’m doing, etc. After about ten minutes of this, I am presented with a “nuisance value” offer to settle the case.

The first couple of times I didn’t immediately dismiss the case, but I did start second guessing certain aspects of my case. In the long run, those initial calls didn’t change the case, but they did cause an initial road bump. Don’t let that happen to you.

When I get those calls now, I let opposing counsel talk as long as they want, ask them questions for more information about their position, and thank them for the phone call (and settlement offer), and then get off the phone.

My goal is always to get as much information as possible, without revealing what’s in my hand. And to be fair, if I am representing the plaintiff, the complaint is essentially putting my cards on the table. But when they ask me questions about certain facts, I usually deflect and ask them why that happened, or why their client would have done something to harass my client. Even better, if they want to contradict the facts with some magical evidence, ask them to send it over, and say you will take a look at it. Nine times out of ten, they will likely say “oh, well, I can’t share any documents before discovery.”

If there is something I need to reconsider, I am not going to let opposing counsel know that I have doubts about my case. The bottom line: resist the temptation to engage in a motion hearing over the phone, it rarely turns out well.

When Necessary, Punch a Bully in the Mouth

Sometimes the only way to deal with a bully is to punch them in the mouth. It’s not easy, and it’s not always pretty, but sometimes it is the only option.

Standing up to a bully does not mean physically intimidating opposing counsel. It does not mean leaving them a nasty voicemail, or sending a snarky email. It means taking a deep breath and figuring out how to turn the tables. Acting on pure emotion rarely leads to anything helpful. Most of the time, acting on emotions may provide some temporary satisfaction, but it will only cause more friction (and more problems) down the road.

When I need to punch back, I let my actions (or inaction) do the talking. In some cases, the best option is to sit back, do nothing, and disengage. That may cause them to move on to the next young lawyer. Or it may confuse them. Even better, your failure to engage them may cause them to make a strategic error in the case.

The worst option is to stoop to their level and make empty threats. Don’t threaten. If you are serious, just do it. If you want to bring a motion, bring a motion. If you want to notice a deposition, notice a deposition. If there is a discovery issue, deal with it under the rules, not by sending random e-mails.

The bottom line is that the rules of civil procedure are your friend. Do not hesitate to involve the court in a genuine discovery dispute if need be. Nothing gets opposing counsel to stop yapping faster than some stern words from a judge.

Being the new kid on the block is not easy. Keep an eye out for game-playing, stick to your guns, and, when necessary, learn to throw a strong counterpunch.

Originally published 2012-02-06. Revised and republished 2017-01-19.

New Attorney? Don’t Get Intimidated by Opposing Counsel was originally published on Lawyerist.com.