Last week, I wrote an article about some of the dirty tactics I have seen attorneys use during my career.  I received numerous positive emails about the article, and I think most practicing attorneys have experienced adversaries using underhanded strategies at one point or another.  Some attorneys have urged me not to write a follow-up piece lest I give attorneys ideas for underhanded strategies they can use against adversaries!  However, since my article last week seems like it struck a chord with some attorneys, I decided to write a follow-up piece listing additional dirty tactics that lawyers should rarely employ.  I hope I don’t give anyone any ideas.

Sending Documents to the Wrong Office

One of the most annoying tactics I have seen adversaries employ is sending documents to the wrong office.  Many law firms, like some of the shops at which I have worked, have multiple offices, and attorneys may rarely visit locations of a firm other than their home office.  As a result, if adversaries send documents to the wrong office, it can be difficult for the appropriate attorney to review the materials.

Now I know what you are thinking, surely there are times when attorneys innocently send materials to the wrong office.  Of course, this is the case, and I have had experiences when I have notified my adversaries of their mistake, and they later sent materials to the appropriate location.  However, sometimes adversaries have routinely sent materials to the wrong office, and unless the Keystone Cops are running their firms, there is no way they would constantly send materials to the wrong place.

My practice is to always send materials to the correct office, and email a copy of the relevant documents whenever I can.  This is the 21^st century, and emailing materials makes things easier.  However, some attorneys intentionally send materials to the wrong location, and if people really trusted their abilities, they would make it easier for their adversaries to review materials.

Behavior at Depositions

Attorneys often employ a number of dirty tactics at depositions.  Since a court officer is usually not present at depositions, there are often few consequences to employing underhanded strategies at examinations before trial.  One of the dirtiest tactics I have seen at depositions is attorneys giving nonverbal advice to their clients during the proceedings.  Of course, the court reporter cannot record nods of the head from counsel, so attorneys can usually employ a number of nonverbal methods to instruct their witnesses.

I remember one time earlier in my career, I was conducting a deposition of a plaintiff who had suffered a slip and fall.  After every important question I asked, the attorney representing the plaintiff shook his head or nodded his head, and I was pretty sure this was a way for him to tell his client that he should either answer “yes” or “no” to the questions asked.  I ended up calling him out on his behavior, and this started one of the biggest verbal confrontations of my legal career.  The plaintiff tried to say that he couldn’t even see what his attorney was doing, since he was in a neck brace and wasn’t able turn his head.  Of course, this was total malarkey.  In any case, behavior like this at depositions is unacceptable, and attorneys should not abuse the deposition process to unfairly disadvantage their adversaries.

Short-Serving Parties

Most attorneys understand that when a party files a motion, there is a set time for the opposition to the motion to be served and filed, and then the party filing a motion usually needs to serve and file their reply within a prescribed timeframe.  Sometimes, attorneys try to file sur-replies to a reply, which is obnoxious, and I can probably devote an entire article to this topic!  In any case, many times, attorneys will serve their documents a few days after they are supposed to, which puts the other party at a disadvantage when drafting their reply papers.  Sometimes, parties do not want to adjourn the return date of a motion because of a few days’ delay in serving the opposition papers, since this could postpone a case.  Everyone knows when their papers are supposed to be served and filed, and it is unfair to serve documents late.

I had a colleague earlier in my career who employed another method to give his adversaries less time to respond to motions.  Court rules generally require that parties simply drop their papers in the mail to an opposing party on the date they are due to serve papers.  My colleague would routinely drop his documents in the mail after business hours, and better yet, before a holiday or weekend, to try and give his opponents less time to respond.  Of course, now that electronic filing is almost universally used, it is more difficult to employ this method against an adversary, but attorneys should not use underhanded tactics to give their adversaries less time to respond.

In the end, lawyering is an adversarial profession, and every attorney is charged with diligently representing their clients.  However, there are a number of dirty tactics attorneys should avoid using, since they unfairly disadvantage other parties, and people should trust that their legal abilities will be enough to succeed on behalf of their clients.

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.