By Grover E. Cleveland • February 03, 2017•Careers, Firms and the Private Sector
Q: I am involved in a negotiation with an abusive opposing counsel. He tries to embarrass me in front of my client and says I don’t know what I am talking about. I am concerned about raising this with my supervising attorney, because he may think I am over my head. Any suggestions?
A: Ah. Civility. Depending on your personality, the rough and tumble of law practice can be one of its less appealing aspects. But sometimes the job involves taking a bullet for your client. Usually, the best course of action involves keeping a laser focus on your client’s needs and working to de-escalate the situation. And “de-escalate” does not mean “appease.”
Here are some tips to navigate rough seas:
- Check in with the supervising attorney or your peers. You are right to avoid appearing weak. But that does not mean you must go it alone. One of the benefits of working at a firm is having other resources. Ask for suggestions about dealing with the situation. Focus your inquiry on doing a better job for the client rather than on avoiding personal unpleasantness. Begin by discussing strategies you have considered. Then discuss other potential approaches.
- Don’t cave. It’s not uncommon for some opposing lawyers to try to intimidate younger and less experienced attorneys. You need to show the bullies – and your client – that it won’t work. Don’t budge. If you cave under pressure, you invite more pressure. Going into a negotiation, you should understand what you can and cannot agree to. And remember – no one can make you say “yes” when you want to say “no.” If an opposing lawyer is coming unhinged, take it as a sign that you are doing your job well.
- Realize that the bad behavior may backfire. Once in a heated negotiation, opposing counsel hurled a pen across the conference table at my client. The room went silent. After an awkward pause, the pen-flinging attorney pretended the stunt was an accident. When no one in the room bought it, he suggested it was a joke. By then, the bad boy barrister was on the defensive. He was not in a good position to advocate for his client. And since the client wanted to maintain productive relations with the other party, the client fired the pen-flinging lawyer shortly thereafter.
- Take a time out. If things get abusive or personal, end the discussions. Just say, “If this can’t be constructive, we will need to continue at another time.” The other lawyer will not want to have to explain why the negotiating session ended prematurely. If you are mired in a particular issue, you can also say that you have to check with your client. Then insist on moving on.
- Shine a light. Witnesses – or a record – can also help to temper tantrums. With negotiations by phone, you may want to start on a speakerphone and announce that someone else is in the room to take notes – or whatever. If the person leaves shortly after the call starts, that is not something that opposing counsel needs to know.
- Try to gain an advantage. Barking back is usually not in your client’s best interest. It can throw you off your stride. And you and the other lawyer may appear to be equally at fault. But staying calm does not mean being a doormat. Whether bad behavior comes from the other lawyer or client, try to extract a price:
I was concluding negotiations on a transaction, and both parties had agreed not to communicate to the press until a certain time. Media messages had been discussed and approved. Without warning, the other party discussed the deal in the press. Rather than rant, I sent an e-mail with the subject line: The Deal Is Off.
The body of the message went on to say that we were not happy with the disclosure, but a deal might still be possible. The subject line had the desired effect, and the remaining deal points fell into place.
Grover E. Cleveland is a Seattle lawyer, speaker and author of Swimming Lessons for Baby Sharks: The Essential Guide to Thriving as a New Lawyer (West 2d. 2016). Grover specializes in programs to help new lawyers successfully transition from law school to practice, helping them provide more value and avoid common mistakes. He is a former partner at Foster Pepper PLLC, one of the Northwest’s larger firms. His clients included the Seattle Seahawks and other entities owned by Microsoft co-founder, Paul Allen. Grover is a frequent presenter on lawyer career success and generational issues at leading law firms and schools nationwide. Many questions in this column come from those programs. Readers may submit questions here or follow him on Twitter @Babysharklaw. He is not related to the 22nd and 24th President of the United States.