Sweet And Sour Lawyering: When To Fight Fire With Fire

Every attorney should find their own balance in when to be persistent and when to be reasonable, but far too often attorneys fall into either extreme.

As advocates, it can be hard for opposing lawyers to get along with one another, especially when those same lawyers must go from potentially arguing a motion against one another to discussing settlement. However, what lawyers must always remember is that their ultimate goal is to get the best result for their client, and not to maintain their own agenda or attempt to maintain a perception about their own abilities.

Many attorneys like to have a persona they articulate to the outside world; however useful this persona may be for such attorneys in finding new clients, in court, or at depositions, it must be put aside when the best interest of the client is counter to such persona. For example, an attorney who likes to be known as a difficult attorney, not willing to give their adversary anything without a fight, and always wanting to be stubborn, must put aside such stubbornness for the betterment of the case and for the client. This is something that will not come naturally, but rather something that takes practice and often goes against a lawyer’s instinct.

When to Fight Fire with Water

While a lawyer’s instinct will often tell them to fight opposing counsel’s fire with their own fire, it is not always in the best interest of the client to do so. Often, it is important for an attorney to be reasonable with their adversaries­ — even if the adversary is being unreasonable — as courts do not look kindly on attorneys bickering over minuscule things simply to establish their chain in the pecking order. Assuming the point is minor, and not detrimental to the case, it may be best to concede the point to appear reasonable to the judge. This may benefit the case in the long run when there is another dispute before the bridge and the judge knows which attorney was reasonable and which was unwilling to comprise on even the smallest of issues. This is something that every attorney must assess in the court in which they are litigating.

When to Fight Fire with Fire

However, simply because an issue is a minor dispute does not mean it is worth letting go simply to appear reasonable to the judge. This is because sometimes it is worth picking a fight with opposing counsel to demonstrate that even though an attorney is reasonable, that attorney will not rollover merely because the adversary insists. Oftentimes, it is good to be stubborn in the beginning of a case for the sole purpose of determining the adversary’s style. One of my colleagues uses this to his advantage when engaging with a new adversary, often picking minor fights with adversaries to show them two things: (1) that our firm can be just as stubborn as any other when tested and (2) to test opposing counsel to see their level of reasonableness and willingness to work with our firm.

Finding a Balance

Sponsored

In many instances, it is necessary to be adversarial with opposing counsel, especially when it comes down to important issues in the case and adherence to court schedules and orders.

Ideally, every attorney should find their own balance in when to be persistent and when to be reasonable, but far too often attorneys fall into either extreme. In my young career, I have worked with adversaries in both extremes, but all too often adversaries are unreasonable for the sake of being unreasonable and not for the benefit of their case. These lawyers are more worried about their own persona and how others in the legal community see them and not worried enough about winning for their client.

The other extreme is much more rare, an instance where an adversary is never arguing and always working with their adversary. This is just harmful — if not more harmful — to their client’s case. This is just as harmful as fighting with opposing counsel at every turn. Without advocating for the client, the attorney is not doing their job and not putting themselves, or their client, in the best place to win in court.

While being unreasonable may be the “fun” way to work for some, especially for those attorneys who only joined the legal profession to do so, it is not the only way to advocate for a client and it is not always in the best interest of the client.


Sponsored

brian-grossmanBrian Grossman was an attorney at Balestriere Fariello, a trial and investigations law firm which represents clients in all aspects of complex commercial litigation and arbitration from pre-filing investigations to trial and appeals. You can reach firm partner John Balestriere at john.g.balestriere@balestrierefariello.com.