March 2000

How to Befuddle Opposing Counsel and Improve Yourself at the Same Time

by Sherrie Bennett, Editor

We’ve all been there: opposing counsel inexplicably comes unglued in a deposition and becomes an emotional bully with your client. As you attempt to stop the proceedings to give the other attorney a chance to chill out and collect himself, you can’t help but think, "He’s acting like a two-year-old. How immature!" Or you’re well into a mediation when it occurs to you that opposing counsel simply isn’t listening to your client’s largely emotion-based requests, which could easily settle the case with little or no cash outlay on his client’s part. Or opposing counsel brings a baseless CR 11 motion without even bothering to research the easily ascertainable underlying facts ahead of time.

Traveling around the state with the WSBA’s Board of Governors, I’ve listened to dozens of lawyers talk about the incivility and immaturity of lawyers. It seems to be the perception that it is always the other lawyer who has the problem. You never hear someone say, "Boy, I was a real #*@*%# in a deposition the other day!" There appears to be a double standard at work — when the other lawyer does it, he’s being abusive. When you do it, you’re just being an aggressive advocate.

There’s also a certain amount of pride (misplaced or otherwise) in being feared for "scorched-earth" tactics, especially among litigators. The underlying rationale seems to be that you are doing your client a favor by developing a reputation for being unreasonable, obnoxious, prevaricating and unpredictable, as other lawyers will cringe when they hear your name and run screaming toward the settlement table.

But even if you don’t believe in karma, you have to wonder about the long-term physical effects of being in the constant adrenaline mode required to earn a reputation as a "takes no prisoners" lawyer. I also question whether the enormous output of energy and money actually results in any significant tactical advantage, as lawyers by nature are known to love a challenge.

While it’s certainly true that you can’t control opposing counsel’s behavior, you can control how you react to opposing counsel’s behavior. Most lawyers could benefit from a little self-diagnostic look at their own maturity levels, especially as it relates to what is referred to as "emotional intelligence." Daniel Goleman, author of Emotional Intelligence: Why It Can Matter More than IQ, contends that it is emotional intelligence (including self-control, persistence and the ability to motivate oneself) that often makes the difference between success and failure in people of equivalent intellectual abilities. Goleman takes an in-depth look at the brain circuitry involved in emotional development. Although nature endows each of us with emotional set points, apparently temperament is not destiny. Your brain circuitry is remarkably malleable. While childhood and adolescence are critical windows of opportunity for setting some basic emotional habits into place, you can boost your emotional IQ at any age.

Sifting through the enormous amount of information in Goleman’s book, I found the following hints for increasing your emotional IQ particularly useful in the litigation arena:

(1) Practice increasing your own emotional self-awareness. When you are aware that your blood pressure is reaching the boiling point, you are more likely to be able to analyze why and take remedial steps to improve the situation. Don’t think that it’s unprofessional to monitor your own emotional needs; you’re human, too, not some kind of legal robot. Failure to be aware of your own emotions can lead to self-sabotage in the form of acting out your emotions in the professional arena, without even knowing why.

(2) Consider the other side’s point of view. This would seem to be a litigation no-brainer. But if you can’t empathize with or listen closely to the other party’s underlying issues and emotions, you can’t figure out what needs to be offered to settle the case.

(3) Don’t fall for someone else’s bait. If someone is dangling bait in front of you, it’s probably to his advantage for you to bite. Take your time, focus on your client’s ultimate needs, and don’t allow opposing counsel to set the litigation agenda.

(4) Keep communication channels open. It is a definite sign of emotional maturity to be civil and polite to opposing counsel, no matter how rude and obnoxious you perceive them to be. Nothing is learned from burning bridges, and you could seriously injure your client’s prospects for settlement by running from difficult personalities and topics.

(5) Don’t take it personally. While this seems obvious enough, in the throes of heated litigation it’s hard to keep in mind that a difficult person is not acting out for reasons that reflect on you personally. Distancing yourself makes it much easier not only to see the other person’s point of view, but also to craft some compromise that might meet everyone’s needs.

(6) Recognize your own strengths and weaknesses. No lawyer excels at every litigation task. Prioritizing and delegating those tasks at which you are less than stellar can benefit your client tremendously.

(7) Get it off your chest. If you’ve got a gripe with your client or someone on your litigation team, vent it and move on, or let it go. Those with high emotional IQs don’t hold grudges.

While I can’t guarantee that using these tools will transform opposing counsel into a rational and pleasant human being, I’m betting that if you consistently work at raising your own emotional intelligence, opposing counsel’s boorish behavior will bother you less and less. And what more could you ask for in the land of litigation?

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