Small Law Firms

Dirty Tactics Lawyers Should Rarely Use

Attorneys should avoid employing underhanded strategies.

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When I first started practicing law, I thought that all lawyers treated adversaries with courtesy and dignity.  I learned in law school that attorneys were part of a learned profession, and it was important to treat clients, court officers, and our adversaries with the utmost respect.  It didn’t take me long to realize that while some attorneys do respect others in how they practice law, many attorneys use dirty tactics that usually have no goal other than to harass or trick adversaries.  Indeed, I have encountered a number of dirty tactics while practicing law, and attorneys should usually avoid employing a number of underhanded strategies.

Serving Important Documents in the Middle of Other Materials

One of the dirtiest tactics litigators employ is to hide important legal documents in the middle of other materials that party is serving on another.  For instance, in New York, it is very important that notices to admit be responded to within the prescribed timeframe or a responding party could face serious consequences.  On several occasions, attorneys have sent me massive combined discovery demands and other documents and hid notices to admit right in the middle of this large stack of papers.  Although perhaps there is an innocent explanation for this, I think this was an attempt by my adversaries to make me overlook the notices to admit.

If you really trust your legal abilities, you do not need to employ sneaky tactics like hiding notices to admit in other materials.  Such a move can strain relationships when it is time to settle a case, and it is just wrong to disadvantage people by employing this tactic.

Serving Documents Before a Weekend or Holiday

I almost never serve documents on an adversary before a holiday or on a Friday.  Sometimes you are of course required by deadlines and return dates to serve documents at times that might not be convenient for other parties.  However, unless I absolutely need to, I rarely serve documents or file motions on Fridays or before a holiday, since I do not want to force my adversary to work over the weekend or think about a matter when they have time off.

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A few weeks ago, Passover, Good Friday, and Easter occurred over the same weekend, and a number of schools were off for Spring Break.  As a result, many people, including a number of lawyers I know, took vacations.  I finished writing a document on Good Friday, and I thought about sending it to my adversary that day in order to get this document off my desk.  However, I waited until first thing Monday morning to serve the document, since there was no real deadline to serving it, and I did not want to bother my adversary over the holiday weekend.  I don’t think my adversary even knew that I held off on serving the document for his benefit, but it was still the right thing to do.

Earlier in my career, I was on the receiving end of a similar courtesy.  My adversary was due to submit his papers right before Passover, forcing me to draft my response over the holiday.  I asked my adversary if he would give me an adjournment, and he didn’t want to, since the case had been delayed for years.  He jokingly stated that he would accept two apples and honey for a week’s extension.  I ended up actually mailing him four apples and honey, and in my note I said, “I might need another week’s extension!”  It was great to not be burdened with this assignment over the holiday, and everyone can make sure that people’s personal plans are not unnecessarily interrupted by legal work.

Complaining to the Boss

One of the best things about starting my own law practice is that I no longer have to report to a boss.  However, when I worked at various firms, there were a number of different partners to which I had to report.  Sometimes, if I was being a “hard charger” at a court conference or a deposition, an adversary would threaten me and say that they would complain about my conduct to more senior attorneys at my firm with whom they were friendly.  It didn’t even matter if my conduct was aimed at bettering my client, attorneys would still threaten to complain about my performance to the boss, and some actually followed through on this threat.

I remember one time, I was at a court conference with an adversary who had failed to produce documents despite several prior orders requiring that this attorney produce the materials.  I did not want to let this conduct slide any longer, and rather than talk to the court attorney about our discovery disputes like we had done in the past, I requested that we talk to the judge.  My adversary was obviously scared that his lack of diligence on this matter would get him into trouble with the judge.

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Instead of arguing the facts of the case, and instead of just trying to comply with prior discovery orders, this adversary complained about me to my boss.  Of course, the adversary did not give my boss the complete story, and my boss told me to back down from putting pressure on this adversary.  If my adversary had felt confident in his abilities as a lawyer, he would have just argued the facts of the case and not resorted to breaking the chain of command and misleading my boss.

There are a number of other dirty tactics I think lawyers should rarely use, and I will probably write a follow-up to this piece discussing additional underhanded strategies.  Of course, it is a fact of life for many lawyers that some adversaries will use dirty tactics.  However, if attorneys really felt confident in their abilities, they would never need to use underhanded strategies to get ahead.

Jordan Rothman is the Managing Attorney of The Rothman Law Firm, a New Jersey and New York litigation boutique. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jrothman@rothmanlawyer.com.

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