“Dear Blockhead”: Handling Difficult Opponents

Making snide comments. Opposing reasonable requests. Filing rapid-fire unnecessary motions. Ignoring phone calls and emails. Condescending letters copied to clients. Interrupting during submissions. Accusations of unprofessional behaviour. Suggestions that a licensee is not competent.

Chances are, each paralegal has either faced such an opponent already, or soon will. Inside the courtroom and out, these opponents make the smallest tasks more difficult, add to stress and drive up costs.

Difficult people cannot be changed, but our response to them can be.

“I’ve had my share” of difficult opponents, says Elaine Page, recipient of the 2013 Law Society of Upper Canada Distinguished Paralegal Award.

“Keep it in perspective,” Page advises. “Just because they are acting that way, doesn’t mean you have to get down in the mud with them. Often, they are baiting you. If you behave in the exact opposite way, you can’t lose.”

Over the course of 20-plus years advocating for clients, Page encountered condescending tones and behaviour more often in the years before paralegal licensing. She has noticed that over the past five years, lawyers have become familiar with the skills and competency paralegals bring to the legal system.

Unfailingly professional conduct, including being fully prepared, is Page’s best strategy for handling the odd combative licensee. “Things have changed substantially. Being prepared and acting like a professional the whole time, occasionally took them by surprise. There’s a different level of respect now.”

Know Your Opponent

Wendy Matheson, a lawyer at Torys LLP, wrote a Law Society Gazette article about the types of difficult opponents one may encounter.

Matheson identifies 10 types of difficult opponents, including: warriors, escalators, showboats, novices, bad-behaviour mimics, stressed-out litigators, pawns, yes-men, bullies and bad losers.

George Brown, a senior paralegal, has met a few of those types over 20 years of litigating. One licensee comes to mind when the topic of civility is raised. “He has an extremely aggressive style. He will tell opposing counsel what a dismal chance they have of success, that there are weaknesses in their arguments. He blind-sides his opponents. I’m not entirely sure it is a disservice to his clients, because they know they really have a warrior on their side.”

C’est la guerre!

For some people, all it takes is one “govern yourself accordingly,” and the letter war is on, according to Matheson. Breaking the pattern can calm things down. “Choose not to escalate. There is a good chance the other side will not escalate either.”

Some counsel deploy a “showman” style, Matheson says, behaving civilly when dealing on the telephone or in person, then later copying clients on “zinger” letters that bear little or no relationship to the discussions.

“One of my colleagues got a letter from opposing counsel that read: ‘Your arrogant and block-headed attempt to bludgeon opposing counsel into submission with Rule 57.07 provided my client with a nice bit of entertainment,’” Matheson recounts in the Gazette article.

A fellow licensee has sent condescending correspondence to Page, including suggestions that she does not understand various rules of the court. Page responds politely, but firmly. “This particular licensee is simply exceptionally aggressive. That is her style. I finally wrote back and asked her whether she realized I had been on the Rules Committee (of the Superior Court of Justice).”

Some opponents view their cases as all-or-nothing wars, Matheson says. Putting the zeal into “zealous advocate,” these litigators seem to view rudeness as a strength. Interruptions, interjections and objections are examples.

Do As I Say — And As I Do

Criminal and Constitutional lawyer Clayton Ruby, CM, has simple advice for handling interrupting counsel: “Don’t give them the opportunity.” He suggests licensees “Be conservative in your submissions, to minimize the opportunity to interrupt. After two or three interruptions, I sit down and say, ‘Your Honour, I cannot continue.’ Let the judge be responsible for directing counsel. Judges generally hate interruptions, and anyone watching will think, this does not look appropriate to me.”

Ruby says responding in kind to a difficult opponent is “what not to do” in these rare cases. “You don’t want to scare the judge, to have the judge worry that he or she is about to lose control of the courtroom and the proceeding.”

Page agrees. “Do not bicker back and forth with opposing counsel. Speak to the justice, not to counsel. I’ve said to judges, ‘Please ask opposing counsel not to interrupt me during my submissions.’ They’ve embarrassed themselves. I’ve just pointed it out.”

Egregious behaviour that is on the record, or has negatively affected a client, should be reported to the Law Society, senior licensees say.

Ruby notes that the Law Society may ask licensees to “come in for a chat” to explain their words and actions. “If you’re smart, you say, ‘Oh, my goodness, I was having a bad day. I apologize and will write a letter of apology if necessary.’”

Let the Law Society deal with things like unresponsive replies to requests, Ruby says. “That’s what they’re there for.”

Fight Fire With Fire – Get Burned

Fighting “fire with fire” is a slippery slope that ought to be avoided. Page says it’s easy to get sucked in, “When opposing counsel is saying you did this, and failed to do that, especially if it is inflammatory, like saying they were not served. It’s tempting. But let them finish, even if what they are saying is outrageous. It’s about staying professional, even when they’re trying to push your buttons. The court will appreciate your professionalism.”

Darryl Singer, a senior litigator, agrees. He says that uncivil litigators “remind me of how I do not wish to behave.” The key is to recognize that you can’t change others, but you can control how you respond to them, Singer says. “It takes inner strength at times, not to respond in the same manner. You must consciously decide to be civil. Careers and lives are affected” by inappropriate behaviour. “Be calm, rational and clear-thinking. That will win the day.”

Bad behaviour can affect clients and drive up costs. “Civility makes the difference between a four or five-day trial and being able to settle without a trial,” Brown says. “I have colleagues who, if they are on the other side, I know we will be able to settle the matter in the best interests of the clients.”

Page says that licensees who are arrogant in an attempt to impress a client take the risk of having the strategy backfire. “The court can and will chastise a licensee who acts that way, and there may be cost consequences,” she says. “I’ve seen that happen hundreds of times in court.”

Brown has seen courtroom arrogance play out to the detriment of opposing counsel. “Being prepared is a greater advantage.” Early in his career, Brown opposed counsel with greater experience and confidence. “I knew I had won because I had hardly slept for days. I worked 18, 20 hours a day, preparing factums and reviewing the Rules. He was over-confident and I was the opposite.”

Manage Expectations – Yours And Theirs

Handling clients who expect nothing less than animosity toward “the other side” can lead good representatives into temptation.

“A client can become entrenched in their foxhole, to the point where no agreement on issues is available,” Brown says. “The case must go to trial. There is nothing at all wrong with reaching out to opposing counsel with reasonable requests, especially if you still want to have a relationship with them, or if your client will have a relationship with the other party. You never want that to happen. As paralegals, we are problem-solvers.”

Sometimes, a legal professional is civil — until their case starts to go awry. “At that point,” Matheson writes, “They begin to lash out at everyone, including counsel and even the court, making often extreme and totally unwarranted allegations of misconduct. Ultimately, like all uncivil conduct, this type of behaviour reflects badly on that litigator’s case, not yours.”

Guidance, Mentoring Necessary

Experience plays a role in civility. Matheson says a lack of practical training and mentoring can create litigators who “flail about in their practice and in court,” as they learn how to behave.

Brown recalls his early career, when he was “young and aggressive,” anxious to push the boundaries. Eager to please his client, Brown drafted an aggressively worded motion, chock-a-block with rules, citations, case law and hyperbole.

When he walked into court and met his opponent — Elaine Page — he immediately felt embarrassed. “I met this nice woman, and realized I had behaved so unprofessionally. You have to be careful, how far you go. You can be destroyed. I learned from that, and from my peers, that my words and arguments have a profound effect.”

As he enters his 21st year in practice, Singer finds civility on a down-turn. Lack of appropriate mentoring is one reason. Mentors can combat the combination of lack of experience and fear that result in poor behaviour. “When I started out, it was easy for a young litigator to go to court every day” and receive guidance, formally and informally.

One reason for the change is a large influx of new licensees, Singer suggests. Where once, 1,000 annual graduates competed for mentors, placements and articling positions, upwards of 3,000 now seek those opportunities.

Why It’s Called A ‘Profession’

Singer advises reaching out, and points to such resources as the Law Society’s Practice Mentoring Initiative for lawyers and paralegals.

“It can be short-term or long-term mentoring,” Singer says. “It’s a good program. Reach out to the different organizations. You will find mentors. I don’t know anybody who would refuse a request for advice. Just call someone and say, ‘Can I bounce something off you? I have this issue, here is what’s going on.’ I take mentoring very seriously and I think most senior counsel do. Ultimately, this is the future of the profession.”

At the same time, new licensees who feel pushed around in court, spoken down to, or told they are not following procedures, may feel intimidated. Senior licensees can put matters in context, and offer advice.

“New licensees are less able to know what to do” when opposing counsel appears to be unco-operative or uncivil, Ruby says. “Ask for an adjournment — with consent of opposing counsel, if they’re smart. Take that half hour and think about how to respond. Call someone more senior and they will advise you. That’s why it’s called a profession.”

But I Saw It On TV!

Some legal professionals seem to adopt a persona usually seen only in fiction. Matheson says these licensees have “learned bad habits by bad example, in court, on TV, or in their dealings with other lawyers,” she writes. “These litigators assume that if it is OK for someone else to behave in a certain way, it is an acceptable way to behave.”

Personal attacks are not only “out of bounds,” Brown cautions — they can backfire.

“If you attack the messenger, you’re showing that you don’t have a good case, because if you did, you would speak to the issues.” Referring to Paralegal Rule of Conduct 4.01, Brown notes that paralegals are to “raise fearlessly every issue, advance every argument, and ask every question” when advocating for a client. “That leaves room for a tough litigator to go too far.”

Bullies exist in the legal profession, as in other fields. Matheson writes that some litigators “treat people miserably until someone makes them stop.” Email and social media make it easier than ever for legal bullies to misbehave and accuse other licensees of unprofessional conduct.

Bad Day, Or Warning Sign?

One issue that can’t be overlooked is that mental health and substance abuse affect behaviour. “Opposing counsel may be going through a divorce, having financial issues, addiction issues, or other problems they carry with them throughout the day,” Singer says.

One sign that mental health or substance abuse issues — or both — are affecting a licensee is a marked change in behaviour, says Singer, who volunteers as a peer counsellor through the Ontario Lawyers’ Assistance Program.

“Some people are just difficult,” Singer acknowledges. “But if you have been dealing with the same licensee for years, and there has never been a problem, and suddenly they are not returning phone calls, not responding to requests, or if they have always been unfailingly polite and now they are not interested in civility — that is a sign that there is a problem.”

Ruby has also seen professionals affected by mental health and substance-abuse problems over his long career. Whatever the cause, uncivil litigators are “an embarrassment for the profession,” that ought to be viewed in context.

“We’re Canadians,” Ruby says. “We tend to be polite and listen to the other side. Have you ever seen an American courtroom? They’re brutal. There are more important issues for the Advocates Society and the Law Society, such as increasing access to justice and facing the problems experienced by women and racialized practitioners.”

Brown keeps the long-game in mind, his “eyes on the prize.”

“When the time comes for me to sit down and reflect on my life and my career, on how I carried myself,” Brown says, “I want to be able to say that I’m proud of my representation, and of my profession.”

by Elizabeth Published on Paralegal Scope Magazine