The Practice: Dealing with Threatening, Demanding Opposing Counsel

Brian Tannebaum suggests that you not drop down to opposing counsel's level, especially if they're being rude.

I imagine there are a few dozen articles on the internet about “dealing with difficult opposing counsel.” There’s probably some good advice in some of them, but I thought I’d offer my own, as, well, I deal with difficult lawyers and have found a way to cast them into the abyss of irrelevancy, causing them to either question their own disgraceful way of practicing law, or wonder how to proceed next.

First, where I learned how to deal with these self-important blowhards. When I was a young lawyer, I had the opportunity to work on a case where a well-known securities lawyer was involved — he was on our side. I went to see him at his New York office, and after an all-day session with the client, he invited me to dinner. (See what I did there?) He told me the story of an opposing counsel in another case that sent him a “lawyer letter” laying out his position on the case, and making several threats and demands.

My friend responded with a letter of his own. It was two words: “I disagree.”

That dinner taught me two things. One, there is no requirement that your response be as wordy as the initial screed of threats and demands. Two, there is no need to respond in detail to bluster, regardless of who is blustering.

I’ve used this tactic many times. I read every email with this question in mind: “Does this require a response?” I also maintain a philosophy that I practice law my way, not opposing counsel’s way. Just because you yell, doesn’t mean I need to yell. Just because you’re a piece of crap, doesn’t mean I need to join you in the gutter….

Clients can be stressful, but what I hear often is lawyers stressing about their dealings with opposing counsel. My question is, why do you engage these idiots at their level?

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Going back to the “I disagree” story, last year, I received a lengthy email from a lawyer telling me what I was going to do and when. He used all the buzz words and phrases: “immediately,” “by everything, I mean everything,” and “if I don’t hear from you in 35 seconds…”

My response? “Was this email meant for me?”

Never heard from him again. Someone else called me a few weeks later and we worked it all out. The initial dope had no idea how to deal with a lawyer that didn’t travel down to the gutter to deal with him.

Lawyers often ask how to deal with these types of chest-beaters. The problem is that they are looking for a way to respond on the same level. There’s a different approach. When someone is yelling, be quiet. When someone threatens, ignore. When someone sets their own deadlines, say you “can’t meet it, but will be happy to discuss it over the phone.” Disarm those who spend their days making threats and demands.

The problem is that lawyers who spend their days making threats and demands are used to invoking a response. I don’t respond in a way that indicates I give a crap. Judges set deadlines; lawyers can ask me if I agree to their request for a date to respond. Obviously if a lawyer says he’s going to file a lawsuit in 30 days if he doesn’t hear from me, he’ll hear from me. I’ll probably call. No emails, no faxed letters, no three-page response to his three-page demand letter. We’ll have a conversation and then I’ll determine whether writing “lawyer letters” is time better spent on behalf of my client. While I know that a .2 conversation isn’t as lucrative as a .5 response to “this office represents so and so and you will now shake in your boots as I lay out your life for the next 10 days,” you may find that responding like a human being may get you further than playing that game with the baseball bat where you see whose hand makes it in on top.

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Part of the problem is that we’ve all been trained to do things a certain way. Someone writes a letter, you write back. Someone threatens, you threaten back. Someone raises their voice, you speak louder. Why are you doing this? What are you accomplishing?

A few years ago, a lawyer set a hearing without contacting me. That’s a no-no. When I called him — called him — to ask why he did this, he responded, “That’s what everyone does to me.” He then apologized. We settled the case and have remained friends ever since.

Don’t ever let your boss, your supervisor, or your “partner” at your firm tell you that the way you practice law is the way the other guy does. When people are trying to invoke a response from you, the worst thing you can do is respond. I’m not telling you to ignore opposing counsel, I’m just telling you to respond in your own way, not anyone else’s.


Brian Tannebaum will never “get on board” at the advice of failed lawyers who were never a part of the past but claim to know “the future of law.” He represents clients, every day, in criminal and lawyer discipline cases without the assistance of an Apple device, and usually gets to work (in an office, not a coffee shop) by 9 a.m. No client has ever asked if he’s on Twitter. He can be reached at bt@tannebaumweiss.com.