From Timeouts To Tantrums – What Two Rounds Of The Terrible Twos Taught Me As A Trial Lawyer

Reflecting on skills learned through parenting children through the “Terrible Twos,” I realized the skills I have acquired in dealing with a difficult two-year old often come in handy when dealing with troublesome opposing counsel.  You know the kind – hostile right out of the gate, argumentative and petulant at every turn, and bullying and belligerent throughout.  Here are some tried and true techniques to get you through that relationship. 

1. Pick Your Battles

Just like spilled milk is not worthy of a timeout unless the cup was purposefully hurled at the window, so too should some actions by opposing counsel be ignored.  Are you dealing with someone who makes speaking objections to every question at a deposition, refuses to grant any extensions, or makes you feel like you are running after a toddler when you try to set up a time to meet and confer about a discovery issue?  When should you wage war against opposing counsel’s misbehavior?

The answer is – when it would further your client’s interests.  Will bickering with opposing counsel after every speaking objection run your own clock and further break up the flow of your deposition?  Or will it throw off the witness and make it difficult for opposing counsel to coach him?  Will giving opposing counsel a taste of her own medicine by refusing an extension make you look bad in front of the judge?  Pick your battles strategically, fighting those that will win you the war.

2. Follow Through

Super Nanny warns not to threaten your child with a timeout unless you are prepared to follow through.  Similarly, do not threaten opposing counsel with something unless you are 100% prepared to do it.  Children can smell an idle threat from a mile away, and opposing counsel will know when you are bluffing.  Do not threaten sanctions unless you have researched whether they are available in your particular case.  Do not threaten to file an anti-SLAPP motion unless it is a viable remedy in your case.  Although the case with this difficult lawyer will come to an end, your reputation will live on.  You want to be remembered as someone who stands by their word so that when you take another stand – whether in that case or the next – your reputation adds bite to your bark.

3. Do Not Get Emotional

We have all seen it – the kid who is having a tantrum in a public place and the parent who totally loses it.  While the parent may not be kicking and screaming, emotionally, he has joined his kid on the grocery store floor.  Toddler – 1, Parent – 0. 

Some lawyers feel so passionately for their clients, they take on their emotions when representing them, often to the detriment of the case.  When faced with an opposing counsel who is emotional in how he is approaching the case, step back and evaluate whether your own passion for your client is clouding your judgment.  The clients may have fought it out in a technology lab or at home where emotions run high.  However, your fight should focus on the legal merits of the case; set the emotion aside.  When opposing counsel is making the fight personal or getting emotional, do not join him on the grocery store floor – instead, take a step back and evaluate the appropriate level of emotion that you should bring to the dispute.  Not only will it help you stay calm and better serve your client, it may help your opposing counsel end the tantrum, stand up and brush himself off.

4. Be The Parent/Lawyer

Nothing drives me crazier than when a parenting blunder is explained by claiming that is what the kids wanted.  “She didn’t want to brush her teeth tonight” or “she said she wanted a snack right before dinner.”  My comeback is, “who’s the parent here?!”

Your client may see opposing counsel’s antics and wonder why you are not fighting back with the same tactics.  What your client may not understand is that you are picking your battles, only taking a stand when you can follow through and stepping back emotionally.  Remind them that these are the reasons they hired you – to be the lawyer.  They came to you not only for your expertise and knowledge of the law, but for your ability to fight for them without the cloud of emotion.  Some emotion is good, but do not let the parties’ fight – which may be very personal for them – become personal for you.  When faced with a lawyer who is taking her client’s matter personally, stay above the fray and remember to get involved only in the battles that will win your client the war.