Lessons From The Lawyer-Coach

Debra L. Bruce is president of Lawyer-Coach LLC , a law practice management coaching and training firm, and author of the Raising the Bar blog. She practiced law for 18 years before becoming the first Texas lawyer credentialed by the International Coach Federation (ICF). She has served as Vice-Chair of the Law Practice Management Committee of the State Bar of Texas and as leader of the Houston chapter of ICF. You can follow her at www.Twitter.com/LawyerCoach or at www.Facebook.com/LawyerCoach. You can also e-mail her at debra@lawyer-coach.com

Negotiating With Belligerent Opposing  Counsel

By Debra L. Bruce, JD, PCC

Opposing counsel raised his voice in irritation when I told him that my client would not be
acceding to his request. I explained our rationale, thinking that would bring him back to a calmer
discussion, as he understood the reasonable basis of our position. To my surprise, he got
louder. He began yelling into the phone.

Initially, I tried letting him vent. When he wound down and I responded, however, he launched
into another ear-splitting tirade. In a very calm voice, I said, “I’m going to hang up the phone
now. Call me back when you have calmed down, and we can discuss it further.” I pushed the
disconnect button.

The phone rang immediately, and the screaming began again. I responded calmly, even
gently, “I’m going to hang up again. Call me back when you calm down.”

The third call began with him yelling, “Stop treating me like a child!”
“I will,” I reassured him, “when you stop acting like one.” I quietly hung up again.

A few minutes passed before he initiated the fourth call. This time he spoke in a moderated
voice, and we resumed our negotiations. We were able to keep our negotiations civil after that.
Whenever he teetered on the verge of losing his temper, I just got quiet. He reigned himself in.

Escalating Attorney Incivility

Unfortunately, today you probably can’t find a lawyer without a “belligerent opposing counsel
story” like the one above, or worse. Articles about the increasing incivility of attorneys fill the
bar journals and blogs. YouTube sports a video of lawyers almost brawling during a deposition.
Courts and bar associations have worked to address the issue. Over 20 years ago the Supreme
Court of Texas adopted “The Texas Lawyers Creed –A Mandate for Professionalism” in an
effort to confront the problem. It did not work.

What can you do if you encounter belligerent opposing counsel?

1. Remain calm. Recognize that this is a tactic to get you rattled so that you’ll make
mistakes, or to bully you into giving them what they want. Psychologists and brain
scientists tell us that when we feel threatened, our “reptilian brain” (called the amygdala)
takes over and prepares us for fight or flight by rerouting blood flow to our arms and
legs. Our focus narrows, and blood flow to the prefrontal lobe (the rational thinking
section of the brain) also diminishes, literally making us dumber. So if we jump into the
fray, we do so with reduced ability to reason things out or to recognize broader options.

2. Behave professionally. Even if opposing counsel’s conduct is an intentional tactical
maneuver, they will also experience an “amygdala hijack” to some degree. Their own
behavior will signal their brain that they are in a threatening situation. If you continue to
behave calmly and professionally, however, you will demonstrate that (i) such tactics
don’t work with you, and (ii) this situation calls for rational problem solving, rather than
brute force. It will help them to calm down.

3. Take a break. When tempers flare the fight or flight hormones and chemicals course
through our bodies. Even when our rational brain begins to regain control of our thinking,

it takes a few minutes for the chemicals to dissipate from our bloodstream. Let counsel
know that you are willing to keep talking, but that you need to step away for a moment.

4. Seek common ground. Lessen the threat to other counsel by reminding them of the
areas where you are not in dispute. Let them know that you want the same thing they
do, wherever possible. If you have already reached some agreements, reiterate them.
Reach up to a higher plane, above the current issue, to identify a goal that you both
agree upon. Perhaps your clients both want to resolve the dispute with the minimum of
publicity. Maybe as transactional lawyers you both want to avoid being labeled as “deal-
killers.” Acknowledging common goals and agreements can foster more cooperative
negotiations.

5. Express your positive intentions. Of course, they will assume adversarial intentions
on your part. By negating nefarious intentions and contrasting them with your good
intentions, you may make the negotiations feel a bit safer. That makes room for more
collaboration in problem-solving. You might say, “We don’t believe in trying to squeeze
every dollar we can out of the deal. We want to have a good relationship with you
through the transition.” Or perhaps, “We don’t want to bankrupt your company. We
want access to sufficient resources to address future medical needs arising out of this
accident.”

If this all sounds too “soft” to work with your opposing counsel, consider this story from Memphis
attorney Maureen Holland. She used to be referred to as a “pit bull” until she found a better way
to communicate and negotiate.

Maureen received a call from opposing counsel in which he opened with a threatening
description of the harsh actions he would take if Maureen didn’t agree to what he wanted.
She responded that she realized that he would conduct his case in the way he believed was
appropriate, but she wanted to let him know that she wouldn’t be engaging in similar behaviors.

As though he hadn’t heard her, opposing counsel reiterated his demands and the dire
consequences of refusing to comply with them. Again Maureen assured him that she would not
be engaging in such tactics. Only after a third round of his angry threats, followed by Maureen’s
calm assertion of her intention to behave reasonably, did the other lawyer seem to grasp what
she was saying.

For the first time, he paused. Then he said, “Well. What do you want?” From there they
managed to move forward to negotiate a settlement in a professional manner.

Do you have a story about how you have successfully dealt with belligerent opposing counsel?