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Dealing with a Difficult Adversary

By Michelle L. Ferreri Esq. (Dec 2010)

Dealing with a difficult adversary, whether a bully, a tyrant, an intimidator, or just someone having a bad day, is a strained experience for any young attorney. I think it is safe to say that every young attorney remembers dealing with his or her first difficult adversary. I certainly remember my first experience. Since then, I have dealt with a handful of difficult attorneys, and I have created five specific rules for myself for dealing with these types of attorneys. My goal in using these rules is to rise above the level of behavior of a difficult adversary so that the matter will stay on track.

Rule Number 1: Always Communicate As If the Judge Were Present
If you always communicate with a difficult adversary as if the judge was listening in on your telephone call or reading your correspondence, it will be very hard for you to reduce your behavior to the level of their aggressive tactics. It is easy to respond to a difficult adversary in haste and with anger. However, if you take a moment to think about how you would respond if a judge was present, the communication may take a more positive turn.

Rule Number 2: The 24-Hour Rule
When receiving correspondence from a difficult adversary, and the issue is not urgent, wait until the next day before preparing a response. Generally, when you wait until the next day, you will have cooled off and can write a response that is professional and to the point. If the matter is urgent and requires a response right away, have another attorney in your office read your response before sending it. It is helpful if someone outside of the situation reads the response so they can revise the tone of the letter, if necessary. If another attorney is not around to read the letter, then write a response and revise it while keeping Rule Number 1 in mind.

Rule Number 3: Only Address the Legal Issues
Difficult adversaries often make personal attacks in their letters and pleadings, as well as during telephone conferences and court appearances. If these attacks have nothing to do with the legal issue at hand, do not respond to them. In my experience the difficult adversary is only trying to inflame the situation by making these comments, and responding to them may only escalate the situation. This rule is particularly hard to follow when you have a client who wants you to respond to these comments. In the family law context, this happens regularly, and the clients feel that when you don’t respond to these comments you are not zealously advocating on their behalf. When this happens, do your best to explain to the client that the specific comments do not have any relevance to their matter and responding to them may very well add more fuel to the fire when dealing with a difficult adversary.

Rule Number 4: Be Prepared
Make sure you have all of the relevant case law and rules on hand when dealing with a difficult adversary. Sometimes, if you give a difficult adversary the cold, hard facts, they will back down from their tactics.

Rule Number 5: Keep Your Composure
Treat a difficult adversary the same way you would treat any opposing counsel, and seek to understand their point of view. By not reacting to the tactics of a difficult adversary, and keeping your composure, there is a good chance they will back down. The most important thing to remember when you are dealing with a difficult adversary is that you do not need to surrender to their hostile tactics to bring your matter to a resolution. You do not need to respond to a difficult adversary the way they are responding to you. By always making sure you act professionally, you will be sure that you are doing your best for your client and your reputation.