Taking it Personally
A major part of litigation is fighting with people. Sometimes the fights are about big things and sometimes they are about small ones. But in either case, I want something and someone else doesn’t want to give it to me. On behalf of my clients, I fight as if I were personally being denied something, instead of my client. I use the same skills and draw on the same energy that comes with a personal dispute. And because of that, I need to remind myself not to take litigation disputes personally.
Why should you continue reading this post about taking litigation disputes personally?
You are a litigator and you want some empathy for one of several difficult aspects of the job.
You’re curious about the kind of fights litigators have with each other.
You’re opposing counsel in a case I work on and you want to know whether you’re going to get under my skin.
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The Kind of Disputes That Arise
A lawsuit is not just a fight between a plaintiff and a defendant about whether the defendant should give something to the plaintiff. Within that one dispute, there are often a thousand subsidiary disputes.
Many of these disputes are about the day-to-day work of litigation. For example, will plaintiff’s counsel give the defendant an extension for the deadline to respond? Can the parties agree to schedule depositions at mutually convenient times? Did a document production come late?
Other disputes concern legal issues. For example, is a particular fact relevant to the applicable legal theory or is it completely irrelevant? Or was a particular question at a deposition improperly leading the witness? Could the defendant be liable for a great sum of money or are there legal reasons why the plaintiff could not recover a large amount?
Phone calls and emails between opposing counsel regularly debate several issues like these.
Similarly, disputes often arise between a client and a lawyer. Lawyers ask a lot from their clients: the answers to a million questions, a lot of money, and a mountain of documents. Clients are often frustrated and that also leads to disputes between the lawyer and the client, who may feel the demands of litigation are unreasonable.
Why These Disputes Feel Personal
Litigation disputes can feel personal because, while the two lawyers (or the lawyer and client) are debating an issue, the differences between them often provide a theme or subtext to the dispute.
Once lawyers learn the name of their adversary, they usually Google them. It is sometimes the case that one lawyer has a fancy background, while the other has a less fancy one. And even if both lawyers have a fancy background, insecurities will make one lawyer feel their resume is inferior or superior to the other’s. These differences may cause disputes about one issue to really be about proving oneself to the other or superiority to the other.
Disputes also arise because some lawyers develop a belligerent persona in their work. Many lawyers believe this antisocial behavior helps their cause or is necessary to protect their client’s interests. Putting aside whether that’s true, it has the separate effect of making a legal dispute feel like a personal confrontation.
Lastly, not all arguments in litigation are resolved through legal research and case citations. Many day-to-day disputes are argued by claiming that one position is unreasonable or that it is so unusual that another lawyer is surprised the other lawyer would even think to assert it. These arguments imply that the other lawyer is bad at their job; that they are acting unreasonably or so outside of the accepted bounds of the profession that the other side is genuinely surprised. To be fair, lawyers often do make unreasonable or strange arguments, but the argument is still one that makes a lawyer feel like their own integrity is being challenged, which makes the dispute feel personal.
How I Handle Them
When speaking with opposing counsel, I often try to make a distinction between me and my client. For example, instead of saying “I want this thing” or “I am willing to produce this document,” I may say “my client wants this thing” or “my client will produce this document.” It is true that I speak for the client and that the client may take certain positions based on my advice, by placing some distance between us, I try to communicate to opposing counsel and to myself that our conversations are not about the two people on the phone or the email, but really about the clients.
Next, I remind myself that it is unlikely that any lawyer treats me differently than they treat their other adversaries. Someone who is mean to me is likely also mean to everyone, and that makes it feel less personal. For that reason, I also call out when lawyers cross the line and say something inappropriate, since if the lawyer did that to me, he is likely doing it to someone else, too. On even rarer occasions, this may mean mentioning this conduct to a judge or disciplinary committee, but only for
Lastly, on very rare occasions, I have to separate myself from a difficult lawyer. I may engage only by email or politely end a phone call. Although it is often better to engage an adversary than disengage, setting boundaries helps keep discussions civil and avoids permitting disputes from becoming more heated.