Being a junior lawyer can be a stressful experience. You’re dealing with unfamiliar challenges and competing demands on a daily basis, all while trying to improve your skills in a fast-paced profession. However, there is one experience that stands out for many junior lawyers: dealing with difficult senior counsel on the other side of a file. It can come in the form of an unexpectedly aggressive position or an unwelcome piece of commentary on how you’re doing your job: “never in all my years of practice have I seen someone do [x]” or “I’m very disappointed that you’re doing [y]” are two favourites.
But just because a lawyer has a few more years of experience than you does not mean that they are in the right. Learning how to handle senior lawyers who are all-too-comfortable resorting to bullying is an essential part of any lawyer’s toolbox. Here are some tips for dealing with those bullies.
1. BE PREPARED
If you know opposing counsel has a reputation for being difficult, come well-prepared to each interaction with them. Learn the facts of your file and the basis for your position inside and out. Your responses will then be more elegant and pointed. You’ll also feel more confident in your position, which will make you feel more confident in your communications with counsel.
2. STAND YOUR GROUND
You may feel intimidated by opposing counsel when they have more experience. They may even use that experience to try to make you doubt your position. However, the fact that opposing counsel has more experience does not necessarily mean that they are taking the right position (or that you are taking the wrong one).
When pushed on your position, remain firm. There may sometimes be a reason to reassess your position. Perhaps someone has provided you with a strategy, case or piece of evidence that you hadn’t considered. But don’t doubt your position just because someone challenges you on it. Over the course of your career, you will hear many lawyers tell you that your position is wrong. That doesn’t make it true.
3. BRING THE CONVERSATION BACK TO THE POINT
When opposing counsel is acting difficult, their comments may have nothing to do with the reason that you were speaking with them in the first place. These comments can often take your conversation off the rails and into pointless bickering.
“If you are dealing with difficult counsel, and they are unfairly critical of you, or they try to make things personal, my suggestion is to not respond in kind. Instead, maintain a professional approach, and guide the discussion back to the actual issue you are dealing with. If counsel continues to want to make things personal, just repeat those steps,” says Robert Macdonald, a Litigation Partner with Fogler, Rubinoff LLP. “By doing so, you will show your counterpart that you won’t be distracted by their tactic, you will accomplish more, and you will help to keep your stress levels in check.”
4. IF IN DOUBT, ASK FOR HELP
When opposing counsel is giving you a hard time on an issue, there is a good chance that a friend or colleague has been in a similar situation before. Don’t be afraid to pick up the phone or pop into another lawyer’s office (virtual or otherwise) and ask them for their input. They may give you the fresh perspective that you need.
Similarly, if you’re in the middle of an attendance (for example, arguing a motion in court or conducting an examination for discovery), don’t be afraid to “stand it down” for a few minutes. Use that time to seek some direction from someone. You’d be surprised how useful that quick break can be.
5. DON’T PLAY BY THE BULLY’S RULES
Some lawyers resort to yelling, name-calling or other unsavory strategies. However, don’t feel that you need to play their game. You can respond with a calm, professional response that still gets your point across. If opposing counsel’s tactics continue, remember that you’re often under no obligation to subject yourself to that behaviour.
“If you are caught off guard by a counsel who is being inappropriate, call them out. If the behaviour doesn’t stop, find a way to end the interaction. If you’re in an examination, take a break or indicate that you will need to adjourn if the behaviour doesn’t change. If you’re on the phone, end the call,” says Samantha Green, a Litigation Partner with Fogler, Rubinoff LLP. “You are not the lawyer’s punching bag, nor do you have to respond in kind, if that doesn’t feel right.”
Use a style that works for you in pushing back against difficult lawyers. It can seem difficult and unpleasant, but it will get a bit easier each time.
This article was originally published on OBA.org.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
