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Recorderdaily at 5 Ways to Manage Unreasonably Aggressive People in Litigation While Maintaining a Healthy Emotional Balance by Nancy Pritikin

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Recorderdaily at 5 Ways to Manage Unreasonably Aggressive People in Litigation While Maintaining a Healthy Emotional Balance by Nancy Pritikin February 28, 2017 LAW BUSINESS TECHNOLOGY BUSINESS TECHNOLOGY LAW TECHNOLOGY LAW BUSINESS RECORDERdaily at www.therecorder.com 5 Ways to Manage Unreasonably Aggressive People in Litigation While Maintaining a Healthy Emotional Balance By Nancy Pritikin LL LITIGATORS FACE aggressive behavior from bullying oppo- nents, witnesses, and sometimes even their Aown clients. At times, judges can be bullies too. Indeed, several courts have openly acknowledged the problem of incivility in the legal profession. In 1992, the Seventh Circuit’s Committee on Civility observed that “the decline of civility standards in litigation prac- tice is among the most important and universally discussed issues facing the legal community today.” See Final Report of the Committee on Civility of the Seventh Federal Judicial Circuit, Nancy Pritikin 143 F.R.D. 441, 444 (1992). Despite Courtesy photo sincere efforts to “restore” civility, the problem remains. In California, situations that are both healthy and in clear in your arguments, questions, for example, the Court of Appeal for furtherance of their client’s interests. and presentations. Unfortunately, too the Fourth District fairly recently There are several important reasons many attorneys believe that in order lamented that the legal profession is why attorneys must learn how to effec- to be an advocate, they must also be “rife with cynicism” and “awash in tively deal with and respond to bullies. a jerk, by bullying, yelling, demeaning incivility.” Kim v. Westmoore Partners , One of the most important is ground- and insulting their opponents. Such 201 Cal. App. 4th 267, 293 (2011). ed in our adversarial system. As the conduct is not only unnecessary, but Confronted with this reality, many Supreme Court explained in Penson it also undermines our legal system attorneys are simply told, “Get a thick- v. Ohio , 488 U.S. 75 (1988), our system by attempting to intimidate an oppo- er skin,” and “Don’t let it bother you.” of justice is premised on the principle nent into silence instead of meeting While well-intentioned, such facile that truth and fairness are best discov- an opponent’s arguments head on. To advice can have adverse consequenc- ered by powerful partisan advocacy fulfill your role in our adversarial sys- es. In particular, it can lead many on both sides of a case. Thus, our legal tem, attorneys must ensure that the attorneys to simply mask their feel- system works best when both sides merits of their client’s position are not ings while anger and frustration boil are able to present their best cases, overshadowed by the bullying behav- up inside, resulting in stress, unhap- testing their opponent and the limits ior or sharp litigation tactics of others. piness, and self-destructive behavior. of the judicial system. To be the most Unfortunately, even intensely Attorneys desperately need strate- effective advocate for your client, focused attorneys can become gies to manage difficult people and you must be prepared, focused, and derailed when faced with bullying, RECORDER belittling, and demeaning behavior by of your client. Additionally, consider dealing with individuals who stand opposing counsel and others. Instead how your behavior and interactions their ground and refuse to engage in a of keeping perspective on the overall at work affect those you care about shouting match. case and the interests of their clients, outside of work, your family and your Take proactive steps to protect your many attorneys make “getting even” friends. Angry aggressive behavior at client and witnesses from inappropri- or personally besting their opponent work often spills over to your private ately aggressive behavior by removing a paramount concern. In addition life. Acting with integrity and purpose them from the situation and seeking to this being a personally unhealthy at work counteracts this result and court assistance if appropriate. Even if approach for the lawyer, it is a dis- allows you to preserve your emotional your client or witness wants to engage service to the adversarial system. It well-being while still very effective for in debate or argument with opposing also is almost always unsuccessful. your client. counsel, it is not in their interests and Judges are quick to cast aspersions Of course, the question still is not going to help your side win your on both parties when they view both remains: how does one effectively case. sides as behaving in an uncivil and deal with a bully? Below are five steps contentious manner. The fact that the for managing difficult people and sit- Step Two: Make a Record other side “started it” usually falls on uations without compromising your A lot of bullying and inappropri- deaf ears. In Davis v. Los Angeles West client’s interests or your personal ate behavior occurs away from the Travelodge, for instance, the Central well-being. courtroom or is off the record dur- District of California ordered attor- ing depositions. It is very important neys on both sides of a dispute to Step One: Create Space to call the behavior out and get it on participate in 20 hours of continu- When you feel yourself reacting the record, either by putting it on the ing legal education for civility and with anger or emotion, create space. official record of a proceeding or by professionalism due to their “uncivil This can be done physically, as by putting it in writing. and unprofessional behavior” in filing taking a step back, standing up, walk- I have heard many stories about a multiple improper sanctions motions ing to another part of the room, or particularly aggressive lawyer (who is and in engaging in “inappropriate by simply breathing while you take a no longer in practice) who had a habit communications” that wasted judicial moment to consider your reaction. of whispering obscenities in the ear resources and “clearly distracted from This physical action creates room for of young, usually female, attorneys the substantive issues in the case.” See consideration and deliberate action just before important court appear- Order Denying Mot. for Sanctions, or reaction. Almost everything that ances. Those off-the-record remarks Davis v. Los Angeles West Travelodge, occurs in litigation is “on the record,” were usually tolerated or brushed off. No. 2:08-cv-08279-CBM-CT (C.D. Cal. so keep that in mind. Speaking with- However, no attorney is required to Nov. 19, 2009), ECF No. 165. When out thinking creates a poor record, accept this kind of behavior in the one of the attorneys requested recon- will make a poor impression before a course of performing his or her job. sideration, the court acknowledged judge or a jury, and does not further If another attorney engages in this that although his conduct was “less your client’s interest. Creating space kind of conduct, the behavior should egregious and less disrespectful” than may also help counteract the paraly- be recorded and any evidence, such the other attorneys, he and his peers sis that many people suffer confront- as a deposition transcript, deposi- were all at fault for “allow[ing] their ed with angry, inappropriate bullying tion video, or any contemporaneous hostility for each other to escalate to a can be counteracted by this simple notes, should be secured. Using this point in which it interrupted the trial step. When you react, do it purpose- information, make an immediate and interfered with the orderly and fully and with integrity. demand for the attorney to stop the efficient administration of the Court.” It is also important to create space inappropriate conduct. Write up the Davis v. Los Angeles West Travelodge, mentally by not allowing the bully to interaction in clear, objective terms No. 2:08-cv-08279-CBM-CT, 2010 WL set the pace or tone of your interac- and not as an emotional ranting. The 623657, at *3 (C.D. Cal. Feb. 3, 2010). tions. Stop interactions that involve writing, even if addressed to oppos- When highly charged emotional raised voices by refusing to partici- ing counsel, is for an eventual judge, confrontations occur—whether in pate and requiring the other person so the tone should be appropriate for deposition, over the telephone, via to speak in an understandable appro- that audience. email, or in court—consider your priate tone of voice. The purpose of By immediately addressing inap- own reaction and ask yourself wheth- bullying is to dominate and control. propriate behavior, you may be suc- er you are serving the best interests Bullies rarely get satisfaction when cessful in making it stop, and/or the RECORDER record and evidence will support the to counteract it. Trusted colleagues insulting your opponent won’t help imposition of disciplinary charges are an important resource. Both state you if you reach a point where you and/or court intervention. See, e.g., and federal procedural rules provide have to consider settling the case. I Mullaney v. Aude , 730 A.2d 759 (Md. avenues to address and correct mis- have repeatedly seen lawyers go out Ct. Spec. App. 1999) (holding that takes. When you take ownership of of their way to personally belittle and protective order could be issued and the situation, you will find better ways antagonize the very people who will attorney fees awarded based on sexist to address it, both legally and emo- decide whether the case will settle. comments made by one attorney to tionally. In short, winning little battles won’t another during deposition, includ- The other reason to get perspective help you win the war if the case goes ing referring to a female attorney is to find out whether you are creat- to trial. as a “babe” and a “bimbo”); In re ing the problem with the other side At trial, “the high road” is your best Williams, 414 N.W.2d 394 (Minn.
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