Most of us already know from our legal training that lawyers have an ethical obligation to diligently support their clients. However, many attorneys act with reasonable constraints on the tactics they use to support their clients to maintain their reputation, and possibly because long-term relationships with adversaries can help clients over time. However, lawyers sometimes use annoying tactics either because of their personality or because they are simply doing their job trying to support their clients. While such tactics can make it difficult for lawyers to deal with adversaries, they can often lead to better results for clients, at least in the short term.
After I left Biglaw and started practicing as a “street lawyer,” who actually went to court and testified, I realized how important relationships with opponents were for a representation. Opponents usually have a say in a number of politeness issues, such as extensions, accepting email service, and other issues. Moreover, having a good relationship with your opponents can help lawyers solve problems and obtain favorable regulations for clients. As a result, it may make sense not to be annoyingly useless to your opponents, so that all these long-term benefits of connections can be realized. However, I have seen many times in my career how annoying lawyers can sometimes get short-term benefits for clients.
For example, I once heard about a deposition in a mass crime case, in which one of the lawyers representing a defendant at the deposition was well known because he was somewhat annoying in his tactics and remained on the periphery of the social circle of lawyers practicing in this field of law. I can attest to these facts because I practiced mass crime in this circuit and I had direct experience with this lawyer.
At the deposition, the lawyer objected to almost all the questions asked by her client’s plaintiff’s lawyer (in this case of mass crime, it was customary for the plaintiff’s lawyers to ask their clients questions at the deposition, I know this is somewhat unusual in other contexts). In any event, the objections were largely unnecessary, as our jurisdiction retains all objections to the trial, except for formal objections, and this lawyer has objected for all sorts of reasons. The applicant’s lawyer was so frustrated by this lawyer that he agreed to stipulate that lawyer’s client to leave the case then and there in order to avoid the meaningless objections of that lawyer. Of course, I didn’t go to this deposition myself, but it was the kind of thing that could happen in those cases, and being annoying helped that lawyer gain a significant advantage for his client.
At another point in my career, I represented a corporate client who had a representative who was going through some health issues. It was quite clear that the potential depositor was too ill to provide reliable information and that a deposit would be detrimental to her health. Even though I received proof that this was the case, my opponent insisted that this depositor be presented for a deposition. We offered to proceed with written questions, to offer any other discovery that my opponent wanted and other compromises, but the opponent did not give up. On the merits of my opponent, he stated that, as a person, he agreed with me that this person probably should not be presented for a deposition, but as a lawyer, he had to be annoying to get all the benefits on which he could for his client. Especially since he made it clear that this annoying tactic is part of a diligent representation, I didn’t hold back much against my opponent for taking the position he was in.
In any case, this annoying tactic has created a huge amount of stress and uncertainty with my client. My client certainly thought about solving the case instead of having to present a witness for a deposition that could be harmful to this person’s health. Of course, I do not accept compliance with litigation tactics that could cause a bona fide health issue, and if I had been in my opponent’s place, I might not have insisted so much that a witness be fired, even if a deposit could cause health problems. However, using this annoying tactic has had some short-term benefits for your opponent’s clients, even if they may have damaged long-term relationships.
I’m sure every lawyer has a story with somewhat annoying opponents who use annoying tactics and get unpredictable results, and if you have your own stories, please contact me, I’d love to hear them. Again, the use of annoying tactics can damage long-term relationships between opponents and may not be a good practice in many contexts. But, unfortunately, lawyers can get short-term benefits for clients by using annoying tactics that some lawyers may not feel comfortable using.
Jordan Rothman is a partner in The Rothman Law Firm, a full-service law firm in New York and New Jersey. He is also the founder of Student Debt Diaries, a website that discusses how he paid his student loans. You can contact Jordan by email at [email protected]