Or, ‘The Fine Art of Zealous Representation’.

As my practice grows, we have taken on more litigation. That is mostly because we are starting to have clients that have been around long enough to sue somebody or get sued by somebody, but it’s also because we are big enough to handle the work load on top of an already busy transactional practice.

This is mostly a good thing. I enjoy interacting with my peers, negotiating for my clients, defending what is right, and being persuasive on my clients’ behalf when there is a gray area. Win or lose or settle, I know that I have taken seriously my duty to zealously represent my client.

In the past month or so, though, I have worked on several different litigation matters with several different opposing counsel. Of course, there are the reasonable and rational lawyers who do not raise claims or defenses that the facts can’t support. Then there are the completely irrational Little Weasels, raising bogus claims, refusing to cooperate in discovery, and being a complete blow-hard for no real reason. Then there’s Foghorn Leghorn types: good ole boy lawyers with their salt-and-pepper hair (mostly salty) and a hearty yet completely condescending handshake (even with each other) whose egos strut into the room an hour beforehand. Those Foghorns love to hear themselves talk. And of course, there’s the Nice Guy Lawyer™ – the one who seems reasonable and rational and zealous in person and in court, but whose true, slithery, slimy self comes out in emails and over the phone. 

The thing is, all three of them think they are just zealously representing their clients. It’s the job, right?

Wrong.

I know, I know – they have no clue that they are being assholes. Worse, they honestly believe they are doing a great job. In reality, they are not being effective attorneys when they are being a jerk to opposing counsel. And lately, the jerks have been coming out of the woodwork. So let me give you some real-life examples from recent litigation. If you engage in any of the following behaviors, you are probably a nightmare to deal with:

• Not engaging in an actual conversation with opposing counsel, and instead shouting over them every time they try to tell you their side. Being loud doesn’t make you right, and it doesn’t make your argument any stronger.

• Threatening sanctions against opposing counsel without a damned good reason. Sanctions are serious business, and should not be threatened or brought lightly.

• Threatening litigation when you have no actual grounds for it. Evidence is kind of a big deal.

• Lying to opposing counsel, ever. But especially while you are trying to justify your client’s behavior. If your story changes more than once, the jig is up.

• Informing opposing counsel of how big, scary and important you and your law firm are. I’m not impressed. Or scared.

• Pretending that the law doesn’t plainly mean what it very plainly says. Yes, there’s plenty of gray area to muck around in. No, that doesn’t give you license to make stuff up as you go along.

• Asking for special courtesy from opposing counsel (like, consent to extend time to file) and then refusing the same courtesy to them.

• Throwing a tantrum because you did not get your way.

• Arguing that contract terms must be enforced in favor of your client *here* but must be ignored because they favor my client *there.*

• Are a bully in email and over the phone when you would never, ever talk that way to someone’s face.

Seriously – I could go on and on and on.

There is a fine line between zealously representing your client and being an egotistical, myopic jerk. You can be civil, even reasonable, and still zealously represent your client. You can be aggressive without being arrogant. You can acknowledge the opposing party’s points without appearing weak.

The Model Rules of Professional Conduct state that a lawyer has the ”obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.” Another way of saying it might be to practice the Golden Rule – treat others the way you would want to be treated – as applied to the legal system.

So how does an attorney zealously – but still ethically – represent a client? I mean, in the real world. Here are some behaviors that are worth emulating that I have seen modeled by the best lawyers I know:

• Listen more than you speak. Ask questions, but don’t dominate the conversation. Your job as lawyer isn’t to be the loudest one in the room. Your job is to be the smartest one in the room. How can you learn anything from the opposing party if all you do is talk over them?

• Use objections wisely. If you are constantly objecting to things that don’t make a difference to your case, you are just being difficult. Protect your client by listening for the things that NEED an objection, and then objecting vigorously. Trust me when I say that this will completely throw opposing counsel off guard.

• Consider that you might be wrong, or even that your client has not told you everything, much less that everything he has told you is true. Don’t just cling desperately to your version of the facts, no matter what. Trust, but verify. Make your client back up what he says with evidence. Be open to what the opposing party is asserting, and scrutinize their evidence. Be very particular about the facts that form the overall picture of the case. 

• Know the law. Researching case law isn’t just for law students. Know the law as it relates to your client backwards and forwards.

• Know civil procedure and the local rules. Nothing – and I mean NOTHING – looks as bad to the court and to opposing counsel as an attorney who barrels through with no conception of the rules. When in doubt, ask a J.A.

• Be prepared to settle the case. Never think there isn’t common ground to be found. We do a disservice to our clients when we insist on taking everything to trial. Use ADR when it is available and make every reasonable effort to settle the case. Very often, compromise is in the client’s best interests. Learn to negotiate.

• Talk to opposing counsel, judges, and the jury, not at them. You need to get your points across, so be persuasive, not just loud.

• Be respectful to absolutely everyone. Refer to opposing counsel as “Mr. Smith,” not “John,” unless you and John are good friends. Same goes for your client and the opposing party. Refer to judges as “Your Honor” without fail, and if the judge is talking, shut up.

• Be courteous, even to the enemy. Acknowledge emails and phone calls promptly. Say “Please” and “Thank you.”

• Cooperate with the process even as you make your arguments. Be reasonable in your demands. Do not frustrate the court with unnecessary motions just to cause delay. Work with opposing counsel to keep things moving.

• Keep a civil tongue. If you can’t say something nice about opposing counsel, or to opposing counsel, don’t say anything at all. But do not be afraid to call another attorney out on their bad behavior. If another lawyer is being a bully, don’t be afraid to tell them they have to stop.

• Do what you say you are going to do. Always.

If I’ve missed anything or you’d like to share an experience, please do so in the comments.