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April 29, 2005

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Comments

noah

any tips for actually dealing with the guy?
he seems to have won if he makes questioner angry.

Evan

noah: Good point. I've advocated the lighthearted approach to litigation (i.e., ignoring your opponent) in the past. But let's say you're working on fifty cases involving twenty-five obnoxious lawyers. Will a smile do the trick? How about telling yourself not to get mad? No and no. Sometimes only an energetic smack-down will work. Retaliation, in other words. Full-scale warfare until someone blinks. Getting even, then some. That's the answer to your question.

You see the problem. Some lawyers thrive on it, but it's a waste. The lawyers get paid but their clients lose out. What a terrible system. Perhaps I'll have more to say about it later.

T. Hadley

It ain't me! The resemblance of name is sheer coincidence. ;)

I've had some people like that on the other side, though. I was fortunate enough not to encounter them very often, but it's still one of the reasons I'm not litigating these days. I'll look forward to reading anything more you have to say on the topic, though.

--Tim

Yeoman

Those fellows are aggravating. If anyone figures out how to deal with them effectively, let me know.

Here's what I've done in the past on some of these things.

1. Memorialize everything in writing, in a very friendly tone. Then when he represents to the judge that you said something, you can pull out the correspondence and embarrass him. I've found this to be highly effective, particularly if you take a position that your poor addeled opponent must just be very confused. CC any correspondece to other counsel in the case, if there are any.

This can be amusing as in:

"Gee judge, my correspondence indicates it was Mr. X who asked for discovery to be kept open on all experts. It says so right here in my letters of 4/14, 4/21, and 4/25. I don't know why he says he never agreed to it, as I quoted him as saying . . ."

2. In the case of misrepresenting what you've said, I once had a case against an opponent who was chronic about it. He did it constantly. I was always writing back with corrections.

I finally couldn't take it anymore and did something you really shouldn't do. I received a letter that was just extreme, saying something like:

"In our conversation of last week you agreed to admit damages in the amount of $100,000. . .". I'd neve admitted any such thing, or had even been close to such a foolish statement (I ultimately won the trial against this party), but I was so mad I wrote back:

"Dear Bill, you are in error on your letter of 6/1 in which you state that I'd admitted damages in the amount of $100,000. In actuality, I think you will recall you admitted your case lacked merit and that you were going to dismiss it. If you do not reply by the end of the day I mailed this, I'll assume that we have an agreement. . ." Again, you shouldn't do that. But he actually called me on the telephone and said that he'd knock it off.

3. In another category of things you really should not do, I had a case against an opponent whose letters were horrifically nasty. I later learned that he sends the same letters out in every case. He accused me of hiding evidence, conspiracy, and fraud, and was going to sue me. This was because he'd agreed to a settlement without understanding it, and wanted out. I wouldn't let him out, as I'd sent him a flood of letters prior to entering into the agreement explaining in detail what we were doing, and repeatedly asking him for any revisions. He did contribute some, but apparently didn't really understand what he was doing.

Anyhow, I came into the office on a Saturday and received a blistering nasty gram. The dumb thing I did was to call him at home. His wife recognized my name immediately and must have known what was going on, as she (a nice person) sounded paniced and told me he wasn't home, and never would be. This cowardly sob wouldn't take my office calls after these letters. I assured her I could call back that evening, but she begged off. I imagine he received a little bit of a dressing down from her, as he never sent another letter. But that was a dumb thing to do.

More effecive, however, was collecting all the letters up and attaching them to the motion to enforce the settlement with the Court. Har! The judge then pretty much assumed he was unhinged.

The lesson of all this is to keep really good correspondence files yourself.

Nasty lawyers are one of the prime reasons, by the way, I'd like out of this line of work. About 25% of all lawyers are pond scum.

Obi Wan Anonymously

What to do with those types of lawyers? That's easy. Go to "Can We Tape" and find out whether it's legal to tape all conversations with opposing counsel. If so, go to a spy store and purchase a telephone with a recording device enabled. They're only about $250 - expensive, but worth because you're also purchasing justice.

If it's illegal to tape, a more expensive solution is to have a stenographer present during the next conversation to transcribe the conversation. Again, although this might be costly, justice is worth the price.

Then, the next time you're in court, wait for the opposing counsel to misrepresent the facts or a conversation. Do a form of cross-examination: "Your honor, I want to make sure that Mr. Smith meant x, y, z." Make Smith clarify. Close the box on him the same way you would close it on a deponent.

Then, bring out your evidence. With as much gravitas as possible, say: "Your honor, I'm really disappointed that an officer of the court would make such misrepresentations. I'm really sorry I have to do this, but actually, here is really what was said."

Follow up with a complaint to the state bar. Never relent. Attack, attack, attack.

No one will ever screw with you again.

Tim Hadley

Lawyers who are considering taping conversations should also check the professional rules, disciplinary opinions, and hypothetical ethics opinions in their own jurisdictions.

Some lawyers have told me that in some states, state law may permit Average Joe to record his phone conversations, but lawyers cannot do so without at least disclosing that the conversation is being recorded and obtaining permission.

Trevor Hill

I'm a 2L, so I'm sure someone will tell me that this suggestion is terribly naive, but is it?

Why not just report them to the bar? You've got a bevy of rules against misrepresentation in any setting, including misrepresentation through omission sometimes.

I'm sure that if everyone who encountered this behavior sent a complaint to the proper disciplinary authority, these would pile up on the bad cases and some action might eventually be taken...

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