Managing Dismissive and Bully Opposing Attorneys
Identifying Dismissive and Bully Attorneys
Attorney to attorney interactions often are a battleground of skill, knowledge and personalities. It is the personality component that can lead to the same dysfunctional relationship between the attorneys that the parties experience with each other. We explore these sometimes explosive relationships and provide effective tools for attorneys to manage the most difficult and possibly high conflict personality opposing attorney.
These high conflict attorneys will be referred to as the Dismissive and the Bully. For these attorneys, the conflict is driven to some degree by life-long patterns of behavior rather than the issues. How these very difficult people are handled can cause the attorney-attorney relationship to either reach the abyss or be manageable.
The Dismissive Attorney
The Dismissive attorney has enormous difficulty trusting others, which leads to compulsive self reliance and an overestimation of their own value since they cannot depend on others. Often these attorneys make you feel as though you need to bullet proof your words. In actuality, this is how they feel they “gold plate” their performance to avoid being judged or attacked or making a mistake. Look for these traits:
- Can deal but can’t feel
- Incapable of empathy
- Look skeptically and critically towards you and your client
- Exhibit hostility
- Tone of voice is cold, condescending
- Shows bad behavior when they do not get their way
These attorneys make a big deal of small things, ask for unnecessary information, drag out negotiations or turn common courtesies into bargaining chips. Other signs of lack of courtesy include refusing to get to know you personally, displaying no sense of humor, ignoring phone calls and emails or snubbing you with, “I have to speak to my client,” and never calling back.
In court, the Dismissive opposing attorney may ask the judge for relief before giving notice or making a written demand, or may ask for an order to immediately produce a document when she has never asked for it before the hearing (References are to California codes. In this instance, Cal Civ. Pro, denoted CCP 2030.300)
The Bully Attorney
While some of the traits of the Dismissive overlap with the Bully, the Bully also has some unique traits. This attorney was bullied and began to engage in these types of behaviors early in their life without consequences. This type of attorney is aggressive in their interactions with the opposing counsel. They will do anything to win their case, often using intimidation, fear and verbally aggressive tactics. They are very dominant and they are easily identified by the amount of space they occupy in the room. Look for the following traits:
- Openly aggressive and forceful
- Getting their way is extremely important to them
- Inflated ego
- Need to dominate and exert power over others
- Boastful and arrogant
- Use fear to motivate others
- Can be disrespectful to women and often act macho
- Need to convince others they are big shots
You may hear the Bully communicate in a manner which includes a personal attack, is abrasive, insulting, condescending or makes the dispute personal; i.e. “You are a dumb ass, too stupid to live and you are just wasting everyone’s time. I’m smart and you are an idiot.”
Even more outrageous is when the Bully asks, “Do you know who I am? You should look me up.” Then he arrogantly belittles the other attorney who has less experience, citing his own Ivy League law school, years in practice, stellar trial experience, followed by a refusal to discuss the issues.
Much of what attorneys accomplish together is the result of trust built between them. Lack of trust damages relationships and undermines the possibility of a resolution. These behaviors are typical of some Dismissive and Bully attorneys. They don’t care what you think of their behavior. The following are examples of actions that destroy trust and relationships:
- Lying about basic facts or making up facts.
- Agreeing to certain terms while on the phone then sending a document omitting, changing or adding material terms never discussed.
- Denying previous agreements or attempting to weasel out of them with, “I don’t remember saying that.”
- Attempting to confirm in writing every detail discussed on the phone.
Actions That Do Not Work in Managing Dismissive and Bully Attorneys
Bully and Dismissive attorneys are very invested in winning. It is necessary to keep their ego intact. These dysfunctional attorneys fight as if their life depended on it. Engaging in the battle will result in two losers. When you participate in a personal war with opposing counsel, you will pay emotionally and ultimately physically — and your client will pay more for the process. A lot goes on very quickly during verbal and email communications which, if we are not tuned into moment to moment, may trigger actions that contribute to a dysfunctional or unprofessional relationship with the opposing attorney (Cal. Bus. & Prof. Code § 6068(e); Prof. Conduct Rule 3-100; Cal Ev C sec. 954, 955 . Elijah W v. Superior Court, 216 Cal.App.4th 140 (2013) (An attorney’s ethical duty of confidentiality to his or her client is broader than the lawyer-client privilege and protects virtually everything the lawyer knows about the client’s matter regardless of the source of the information). Responding in kind is not effective. While it is difficult to resist, and for some, exhilarating to jump into such a battle, ignore it. Don’t become engaged in that fight. Aggression can escalate forever. In negotiations, it blocks deals from getting done.
Avoid Interrupting — Listen Instead
Attorneys often speak over each other. When you are dealing with difficult opposing counsel, resist the urge to interrupt because listening is one of your most powerful tools. Everyone likes others to listen to them, especially Dismissive and Bully attorneys. If you listen to them it is likely that opposing counsel will provide you with important information.
People will tell you more when they feel you are listening to them. Try these powerful listening tools:
- Avoid interrupting. Wait until opposing counsel has finished. This may require extraordinary patience.
- Focus on the substance of what is said, not tone or volume.
- Repeat back, “Here is what I think you said, is that correct?”
When listening to opposing counsel, listen also to the emotional content of their message. Identifying emotions can provide valuable insight into their priorities, values and intentions. Opposing counsel could be lying, or they could be fearful of losing on a particular issue or many issues.
Reacting only draws you, and your client, into the opposing attorney’s side of the game where you cannot win.
Ways to manage your emotions include engaging in activities that are pleasant. Go for a walk or even strenuous exercise, listen to music, and seek out a confidant who can help you see the funny side of the situation. If you discuss the case be sure to not reveal confidential information. (Cal. Bus. & Prof. Code § 6068(e); Prof. Conduct One of the original and best resources is Mindfulness: Foundational Training For Dispute Resolution, Prof. Leonard L. Riskin, Journal of Legal Education, Vol. 54, Number 1, (2004). For a brief synopsis see Harvard Health Help Guide, Benefits of Mindfulness, Rule 3-100; Cal Ev C sec. 954, 955 . Elijah W v. Superior Court, 216 Cal.App.4th 140 (2013) (An attorney’s ethical duty of confidentiality to his or her client is broader than the lawyer-client privilege and protects virtually everything the lawyer knows about the client’s matter regardless of the source of the information).
Do not criticize the opposing attorney, Dismissive, Bully or otherwise. It will immediately downgrade communication and the relationship. Instead, blame everything on the clients and keep the communication professional. Reciprocating can make you look bad. One attorney shared that while in the judge’s chambers, she heard opposing counsel tell something to the judge she thought was a lie. She struck back by telling the judge the other attorney had not been honest. After the meeting in chambers, she felt she and the other attorney had argued like children. She felt she had made an unprofessional impression on the judge.
Recovery from Reciprocation
If you do react in a negative way, here are some tools to help turn the relationship around:
- One attorney recommends being candid and acknowledge being unreasonable. She suggests, “I may have reacted. Let’s revisit this issue.” This changes the tone of the conversation and possibly the relationship.
- Before things spiral out of control another attorney attempts to mend bridges by apologizing on the phone or in a letter. “Let me try again. It was inappropriate.” On occasion the other attorney may say, “We both have terrible clients. Let’s agree that when the case is done we will meet for martinis (Nic’s Beverly Hills; Bar Agricole, San Francisco; Noble Experiment, San Diego, so chic reservations by txt only) or chocolates (Compartes, Brentwood; Recchiute Confections, San Francisco; Eclipse Chocolate, San Diego)..
- One attorney deals with the opposing counsel’s outrageous behavior by drafting a nasty letter that covers the complete catalog of miserable acts. Then she tears up the letter. This is a very therapeutic process. Then she writes the appropriately professional letter.
Tools that Manage Dismissive and Bully Attorneys
Not reacting to difficult opposing counsel is fundamental. When the opposing attorney is aggressive or abrasive, do not take it personally. High conflict personality types, including Dismissive and Bully attorneys, have learned to deactivate and minimize their feelings. As a result those interacting with them feel frustrated, while they seem to feel nothing. Interactions with this type of opposing counsel can trigger all kinds of reactions in us, and it can be difficult to know what to do. Things are confrontational only if you allow them to be.
When the other attorney makes what appears to be a personal remark to you, this may merely be how they treat everyone. Let it pass over you and don’t assume it is intended to be confrontational. Here are some powerful tools:
- Never raise your voice.
- Walk away from an avoidable confrontation.
- Remind yourself that you know what professional practices are.
- “I don’t know why you turn this into a conflict between you and me. I know you have a job to do and I don’t take anything you do personally. I hope you would do the same.”
- Take a break from the action with a deposition recess or break during negotiation.
- When opposing counsel is nasty or makes personal attacks in front of the judge, remember judges don’t want to hear it. Don’t dignify it with a reaction. One attorney interviewed had a judge nod at him not to respond.
- Change media. When telephone conversations fall apart, such as when opposing attorneys keep changing their story or are extremely unpleasant, abusive or uncooperative, move the conversation to email. Conversely, a good way to overcome tit-for-tat letters or emails is to pick up the phone and ask, “What’s going on? Let’s talk about this.”
Getting angry at difficult people gives them a sense of victory and that they have accomplished their goal. If you must show anger before a judge or mediator, be very measured about it so that you will be taken seriously.
When you empathize with another person, you are heard as genuinely trying to understand their position. Even though it is challenging, empathizing can in some cases diminish opposing counsel’s bad behavior.
- “I hear what you are saying. Let’s work through this so we can understand each other.”
- Allow them to vent, and when they stop, reply, “I have to apologize to you. I must have done something very rude for you to treat me like that.”
- When there is a lull in the action, one attorney attempts to establish a human connection. “Do you have kids? What school do they go to?” He learned that their sons were on the same soccer team. The relationship worked much better from then on.
Setting Limits and Establishing Boundaries
It is important to set limits. You must stick by the rules and demonstrate that you know what you are doing. The rules are boundaries that help contain very difficult opposing attorneys. Tell them what you are going to do, and then just do it. No gamesmanship. You must follow through to be taken seriously. Put personality issues aside.
- Depositions can be especially contentious. When it becomes obvious that further argument over a particular question will not lead to a solution, one attorney calmly suggests, “Let’s move on to your other questions and let the judge decide this question and others we cannot reach agreement on.” (C.C.P. § 2025.480 (to compel responses); C.C.P. § 2025.420 (protective order); Fed. R. Civ. P. 37(a)(3)(B)(i) and 30(d)(2) A federal judge levied sanctions of more than $29,000 on a lawyer and his client after finding that a deposition was a “spectacular failure” because of the client’s constant use of vulgar language and insults and dodging or refusing to answer questions, and his lawyer’s failure to rein him in. In his 44-page opinion in GMAC Bank v. HTFC Corp., U.S. District Judge Eduardo C. Robreno found that Aaron Wider, the CEO of HTFC, engaged in “hostile, uncivil, and vulgar conduct, which persisted throughout the nearly 12 hours of deposition testimony.” Robreno noted that Wider used the “F word” or variations of it 73 times during the deposition and that the video shows that his lawyer, Joseph R. Ziccardi of Chicago, at one point “snickered” at his client’s conduct. Ziccardi was also to blame, Robreno found, because he failed to stop his client’s tirades and persuade him to answer questions.)
- If the opposing attorney exhibits bad behavior in depositions, such as screaming at you or your client, or he continuously seeks information that is not obtainable, such as privileged communication, consider adjourning the deposition. (C.C.P. § 2025.470 (adjourn deposition to obtain motion for protective order) Then reset as a video deposition (C.C.P. § 2025.330(c) (any party may videotape deposition and must give notice) for the purpose of recording the behavior of the Dismissive or Bully attorney. In a discovery motion provide excerpts for the judge so she can see what really is going on. But don’t go overboard because judges hate when attorneys act like squabbling children.
- In discovery, one attorney first phones opposing counsel and discusses the need for cooperation in production of information or a narrowed request. If opposing counsel does not cooperate, he files a motion to compel or motion for protective order right away. The faster the motion, the sooner the relationship will shift.
What we do as attorneys depends on what is going on inside ourselves. We are all limited by our thoughts, emotions and habits. Be deliberately aware of what is going on in yourself and your environment, moment to moment. This gives you the opportunity to notice things that influence you, such as emotions and physical sensations. These distract us from what we should be paying attention to. Mindfulness allows us to understand others and eliminate emotional distractions that interfere with good judgment.
Stay aware of your emotional and physical reactions to opposing counsel. Each reaction is an alarm warning to look at what you are reacting to and why. Consider what is good for your professional relationship with the opposing counsel and your client. It may be necessary to detach, calm your mind and body, and then return to the moment. You can then reply calmly and professionally. With practice, this can be done in seconds.
When the other attorney gets louder your response should be quieter. When they get more upset, you become calmer: not just outwardly, but inwardly as well. The opposition will initially hate this, but you will be much more effective and they will eventually respect your professional approach. (One of the original and best resources is Mindfulness: Foundational Training For Dispute Resolution, Prof. Leonard L. Riskin, Journal of Legal Education, Vol. 54, Number 1, (2004). For a brief synopsis see Harvard Health Help Guide, Benefits of Mindfulness.
Attorneys who allow their relationships with opposing counsel to break down are not serving their clients. They are merely repeating the dysfunctional behavior that brought their clients to them. As a judge once told one of the attorneys interviewed: “The rules are there for a reason.” Stick to them and you will find your interactions with Bully and Dismissive attorneys will be far more fruitful.
Do not get drawn into their games. Keep your eye on the prize and what you are trying to accomplish in the interests of your client. If what the opposing counsel is trying to move you into does not meet your goals, don’t let yourself spin out of control. Determine to win with intellectual strategies, not emotion games.
This series of articles is the result of extensive interviews with more than forty-five attorneys in Southern California. These attorneys are primarily litigators / trial attorneys and several transactional attorneys. The group has some diversity, male, female and gay, with a range of practice experience from seven to forty-plus with the average of approximately twenty-five years. Additional research was conducted by Marc Stalk, Esq., San Diego.