Don’t Complain About Unethical Adversaries. Beat Them.

An adversary’s unethical or downright deceitful behavior is not an excuse to complain, nor is it reason to stop winning for your client. 

As a government lawyer, I investigated and prosecuted people who committed all kinds of crimes: robberies and domestic violence, sex crimes and fraudulent business schemes, insurance fraud and human trafficking, organized crime and all kinds of enterprise corruption. There were all kinds of bad guys who had done all kinds of bad things.

Generally, though, I got along just fine with the criminal defense counsel. We obviously disagreed about quite a lot. We frequently had different philosophies about criminal justice. There was the occasional nut or liar, of course, but most of the time, I found criminal lawyers on either side to be truthful and to follow the rules.

That changed dramatically when I started a practice that became the firm where I work now doing civil work. In one of my first cases where I represented a plaintiff in federal court suing a bigger company, immediately after filing I received a letter (from an all-Ivy educated white-shoe lawyer at a large, supposedly elite law firm) accusing me, personally, of a slew of misconduct.  The lawyer threatened sanctions under Rule 11, Section 1927, and goodness knows what else.

I was shocked. At first, I thought I made some major mistake in the case. I did what I was supposed to — conduct an inquiry into the facts and reconfirm my understanding of the relevant law.

I was fine. The threatened motions, if filed (and they eventually were; more on that below), were baseless and an improper attempt, I later understood, to pressure a relatively young lawyer and a small client represented by a small firm.

I learned that improper conduct like that was common in civil work, and, in particular, in the messy business disputes that many of my colleagues and I focus on. More than that, nonsense sanctions letters were the least of it. The first time an adversary lied to a judge in court I didn’t do a good job of handling it because I was so shocked by it. The first time an adversary misrepresented what a case stood for in a brief I reread the case several times because, again, I couldn’t believe that the adversary, a very bright lawyer, could so clearly misrepresent authority.

I was a young, idealistic idiot. I’d like to think I’m a less young, even more idealistic about the law, hopefully not-so-much-idiot now (the fact that lawyers lie, Virginia, is not an excuse to become jaded; quit the profession if you’re just going to be bitter). In at least one way I am wiser as I now understand that this is part of litigation. Indeed, while such extreme examples are not routine (if they do happen frequently), game playing with schedules when an adversary smells out that a judge will not enforce scheduling orders or relevant rules is outright routine, if also unethical.

This is not all lawyers, nor just lawyers at big firms.  I have a big firm adversary now who could not be more gentlemanly and who, while fighting hard for his client, has been a model of ethical conduct. But this is a big part of the practice in high stakes litigation.

So what do you do?  Whine and complain?  No. That’s like cursing the tide. It’s there. Deal with it. The best litigators accept that in certain areas of practice, and especially in certain parts of the country (New York is unfortunately particularly bad in terms of this problem), you will deal with adversaries who are unethical and will push the limits on rule breaking as long as they can get away with it, and as long as they keep getting paid by their clients for it.

The best litigators do what they always do: figure out how to win. Don’t complain; win. Turn the bad guy’s unethical conduct to your advantage. At the right time (choose wisely because judges hate when lawyers point fingers at one another) put the misconduct in front of the judge. Consider your own, legitimate sanctions motion and the tactical benefits of it. At a minimum, set aside your righteousness and observe: see how your adversary litigates so you can better anticipate how she will continue to fight in the chess matches that some of the bigger (and more interesting) litigations end up becoming. Just focus on how to win.

I am thankful that this is what my colleagues and I did in the case I mentioned above where I received my first sanctions letter. I thankfully got past my naïveté and focused on getting the best result for our client. I do have to give the lawyer in that lawsuit credit in that, eventually, he not only filed his Rule 11 and Section 1927 motion, but also a motion for attorney’s fees. The case became a street fight, and at every conference and argument the haughty defense counsel would make smug remarks to his frightened looking associate about how we would eventually pay their fees.

And then not only did our adversary lose completely on his sanctions motions, we got great testimony in discovery, won on a motion for partial summary judgment, and his client paid our client hundreds of thousands of dollars rather than go to trial.

Don’t complain about the bad lawyers. Beat them.

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John Balestriere is an entrepreneurial trial lawyer who founded his firm after working as a prosecutor and litigator at a small firm. He is a partner at trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at [email protected].