Dealing With Difficult Opposing Counsel

Dealing With Difficult Opposing Counsel

Sometimes you are going to have to deal with shitty people. This is not the most scientific thing you will read today but it is absolutely true. If this is surprising to you I would like to welcome you to the practice of law. Some of those people will be opposing counsel. For our purposes opposing counsel applies to civil and criminal cases.

As a criminal defense lawyer all my opposing counsel are prosecutors. I have not counted but I know I have dealt with hundreds of different prosecutors. Prosecutors, like all opposing counsel can be difficult to work with. When faced with difficult opposing counsel some lawyers will give up and stop trying to work with them. I have defense lawyer friends that will not speak to certain prosecutors. They won’t say hi, make small talk, or interact with them in any way. While I understand the reasoning behind this approach I don’t usually agree with it.

While there are no secrets to working with difficult opposing counsel there are several steps you can take to make your own life easier:

1. You can’t beat anger with anger:

If you are dealing with angry or difficult opposing counsel you can’t win by being angrier than them. If they are being unpleasant to you you are not going to get anywhere by trying to be unpleasant to them in return. Think of the old cliché about adding fuel to the fire. Often times your unpleasant opposing counsel will only feed on negativity and become more negative.

Last week I had to deal with such a prosecutor. When I deal with her I know she will be unpleasant and difficult. She always is and it would be foolish of me to expect anything else. I know that if I just match her in unpleasantness I won’t win because that’s what she wants.

Remember that in general opposing counsel who are difficult are unhappy people and want to spread their misery to as many people as they can. So what can you do? My advice is to be as pleasant and as positive as you can when dealing with such people. The reason I think this approach works is because is it the opposite of what your unhappy and difficult opposing counsel wants. By being positive and pleasant you are showing them that their negativity is having no effect on you. In essence, you win by not sinking to their level.

Don’t confuse what I am saying by thinking I am saying be a punching bag. This is not what I am saying. Always stand up for yourself and your client, but do it in a way where you are the positive lawyer.

2. Try not to burn bridges:

Whenever possible try not to burn bridges. If you break a relationship with opposing counsel and you think the relationship can be fixed try to fix it. Some relationships are not salvageable and this is ok also. Some things simply can’t be fixed. Out of the hundreds of prosecutors I have worked with many have been difficult or unpleasant. Nonetheless I have managed to not burn bridges with most of them. I can only think of one prosecutor out of hundreds that I would say we have a relationship that can’t be fixed. As I mentioned, this will happen from time to time.

3. Remember your reputation is at stake:

Always remember that EVERYTHING you do will have rep ructions on your reputation. Also remember that reputation is everything for a lawyer. Lastly, remember that everyone talks and that bad news travels a lot faster then good news. If you do something bad or are unpleasant to people other lawyers will learn about it. I can’t tell you how many times I have heard lawyers talking about another lawyer about their reputation. When you take the high road when dealing with difficult opposing counsel this will have a positive affect on your reputation. Opposing counsel will hear about you as being reasonable and pleasant to work with. The better your reputation is the better it is for your career. A good reputation will make you more money. A bad reputation will cost you money.

Follow my three steps and you will have an easier time dealing with difficult opposing counsel

In the courtroom, it helps with the Judge who usually does not want to deal with difficult counsel.

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