How Do You Deal with Overly Aggressive Opposing Counsel?
June 21, 2012
Dear Ask a Mentor,
How should you react when faced with overly aggressive opposing counsel, like when opposing counsel makes excessive speaking objections during a deposition?
—Taming the Beast
Dear Taming the Beast,
In law school, we are taught that ours is a noble and civil profession populated by genteel intellectuals guided in their every action by the rule of law. What a shock it is, then, when we encounter for the first time that one attorney who is the complete opposite of what we have been taught to expect. We are in a deposition, and this attorney may be rude, condescending, hostile, disruptive, vulgar, and/or disrespectful. We are caught by surprise and may not be prepared for how to react or respond. How we handle the situation reflects on the type of attorney we are, on our firms, on our clients, and on our profession in general. Of utmost importance is to, as they say, keep calm and carry on. Under no circumstances should you take the bait or stoop to the level of individuals who diminish the standards of our profession. Remember that, by taking the bait, you relinquish control of the situation to that person, whatever his or her motives might be. Of course, however, you do not have to be bullied, intimidated, or prevented from doing your job.
How you chose to respond to the hostile adversary will depend on the motivation of that attorney, and, if you remain calm and a bit detached, you will be able to determine that motivation. Often, the adversary’s poor conduct is intended to provide a tactical advantage. This is often the case when a more senior attorney picks on a less-experienced attorney or a female or minority attorney. The senior attorney may be attempting to size you up, to see if and how far he or she can take you off your game. He or she may be attempting to disrupt your concentration or your flow, to impress his or her client, or to make you appear ineffective in front of yours. Stick to your game plan. The best strategy for overcoming these efforts is to be civil but firm. Respond firmly but politely on the record. Do not allow someone else’s poor conduct to dictate how you handle the work you are there to do.
Know the rules ahead of time. Be thoroughly familiar with the applicable rules of procedure for the jurisdiction so that you are confident in how you are conducting/defending the deposition. It is easier to be confident when you know you are legally correct. For example, are you required to put each question on the record to get rulings on a motion to compel?
If necessary, take a break and compose yourself privately. If you are in doubt about a specific point, call another attorney at the office and explain the situation. If needed, that person can do a little quick research on the contested point. For example, can an expert sit through the deposition of a party?
Make your point on the record if you believe it will be necessary to support a motion or to address admissibility issues at trial. Do not be bullied into having conversations off the record. As long as one of the attorneys requests it, the court reporter will remain on the record. But make sure you are speaking clearly and not talking over each other. Losing your composure will not result in a useful record. Also, if there are any nonverbal actions, make sure to describe them for the record. For example, “Let the record reflect that counsel has packed up his papers and is standing by the door, talking on his mobile telephone.”
Do not make rash decisions. Consider the pros and cons of, for example, whether to terminate the deposition. Will the other side have a “second bite of the apple”? Will the court be sympathetic to your position in the context of the entire litigation so far?
Plan ahead. If the case has a history of contentiousness or if it is a very delicate deposition, consider the appointment of a special master to be on call or even to attend the deposition. Videotaping often also discourages poor conduct.
Of course, some people are just plain rude. There’s really not a lot one can do with these folks. A polite but clever rebuke will sometimes work. One of my associates told me that a much older attorney continuously belittled her objections during a deposition, telling her that her objections were “stupid” and that he was already a lawyer when she was in kindergarten. In frustration, but calmly, she responded that the rules of civil procedure had been amended several times since then and he should really take the time to catch up on the changes.
Once, when an adversary was repeatedly nasty to me, I looked him in the eye and politely observed, “You’re a successful attorney, you make a good living, and you have your own airplane. It must be sad to go through life feeling so miserable all the time.” Above all, remember that you are under no obligation to respond to goading. You can always achieve your objectives with confidence, civility, and professionalism.
Anna D. Torres, Esq. is with Powers, McNalis, Torres & Teebagy in West Palm Beach, Florida.