Dealing with ‘Difficult’ Opposing Counsel

The Bencher  |  July/August 2023

By Joseph F. Canamucio, Esquire

At some point in our careers, we all deal with “difficult” opposing counsel. Our responses tend to be negative. But except for relatively rare cases of true misconduct, where the relevant rules of professional conduct usually dictate how we should respond, opposing counsel’s level of difficulty is largely in the eye of the beholder.

This article aims to remind us that, in our legal systems, we discover truth and administer justice only with the help of an individual who takes the opposite position from us on many issues, both important and mundane. It is only because of this robust opposition that we can ever hope to claim that the truth has been revealed, justice has been done, or the public interest has been served. Viewed through this lens, opposing counsel are properly understood as integral to our jobs, something more akin to a colleague or partner in the legal system than an enemy. And by keeping this framework in mind when dealing with opposing counsel who do annoying things, we can use principles of emotional intelligence to empathetically (and effectively!) deal with them as opponents rather than enemies.

Recognize the ‘Loyal Opposition’

The English Inns that inspired the American Inns of Court understood professional conflict quite well. The notion of the “loyal opposition” has its roots in the Westminster political system, referring to a minority political party that reliably opposes the policies of the majority party while still honoring the political system and adhering to its results. The idea is that the loyal opposition, besides simply biding its time and waiting for its day in the majority (when it can prevail and impose its will), also deserves some amount of respect from the party in power for its vital role in legitimizing the political system. When the minority party does not both disagree with the majority’s policies and respect the results, the political system is not a real democracy.

There is a clear parallel in how most of our legal systems are arranged. They require two opposing sides that, by contesting each other’s legal, and even factual, assertions in an adversarial posture, empower a neutral third party to discern the truth of the matter or determine a just result.

Without public defenders who enjoy the ability to dispute law enforcement’s factual and legal assertions, criminal prosecutors can never claim that justice has been done in their jurisdictions. Without worker representatives who have a strong procedure for enforcing work rules or policies, employers can never guarantee fairness in their employment actions. Without informed bid protesters, government entities cannot confidently tell taxpayers that they have procured goods and services fairly. The list goes on. These dialectics are so integral to our various legal regimes that the same source often funds both opposing sides!

In other types of legal systems, opposing counsel are less integral and therefore their antics are less relevant for the average practitioner. But the same types of “difficult” behaviors exist; they just come from different sources.

The next time opposing counsel emails you yet another obnoxious set of discovery requests, consider if you would prefer that the trial judge was demanding them, because he or she is an active participant in the investigation! This is often the case in inquisitorial systems, like those in France and Italy.

Or, the next time opposing counsel makes a late objection to something you thought was complete, imagine the number of objections you would endure if there was a judicial officer whose job it was to police your strict adherence to the rules, instead of leaving that task to the parties in interest.

One does not need a comparative law degree to see that the difficulties of dealing with opposing counsel are a natural byproduct of an adversarial legal system. We are not dealing with difficult opposing counsel, just difficult people who happen to be in an important, opposing role. Recognizing this reality can disabuse us of the notion that the answer to annoying behaviors can or should be found in legal recourse. Rather, we would be well-served to learn some of the lessons of emotional intelligence that have recently enjoyed increased popularity among various professionals, including lawyers. Here are two key concepts from the area of emotional intelligence that may be particularly helpful as you deal with “difficult” opposing counsel.

Practice Reframing

Based in cognitive psychology, reframing is defined by the American Psychological Association as reconceptualizing a problem by seeing it from a different perspective. Altering the conceptual or emotional context of the problem can alter one’s view of the problem’s difficulty and can even uncover ways to solve it. Reframing can also break cycles of unproductive behavior (which often characterize our responses to problems we perceive as created by others).

Consider again the unduly burdensome discovery requests from your opposing counsel. The problem, from our initial perspective, might present itself as a personality problem that creates cost, workload, or fairness issues. But remove the emotional response to the requests (which, after all, are probably permitted by the rules of discovery) and focus on the actual situation: engaging in discovery. Discovery is what will provide you and your client with the material for the motion or hearing that will give you the opportunity to prevail. Discovery might also force you or your client to reckon with adverse facts that are not rightly ignored. By viewing the requests through the frames of the opportunity to prevail or to have a frank discussion with a difficult client, these requests (besides the opportunity to master the facts of the case) could yield several worthwhile results. Engaging with these requests may be sound litigation strategy rather than a problem after all.

Reframing doesn’t always mean relishing more work, of course. It is about seeing what initially presents as a problem from a different angle. Useful questions to ask might include:

• Is this really a serious problem? Will I remember or care that this happened in five minutes, days, weeks, or months?
• Are there any benefits to the situation?
• How can I handle this in a way such that I can preserve my energy for more important or meaningful tasks?

Asking these questions and honestly searching for answers will make your reactions work for you rather than against you when you deal with difficult opposing counsel.

Don’t Feel Attacked

Our reactions to situations (as opposed to the situations themselves) are usually the only thing under our control. And if recognizing our opposing counsel as the loyal opposition and reframing the situations they present lead to one key takeaway, it is likely this: don’t feel attacked.

The portion of our brains that generates our “fight, flight, or freeze” response—the amygdala—kicks into gear when it senses we are being attacked. In a world of emails but no saber-toothed tigers, this physiological response can be a great disservice. But diligently refusing to view opposing counsel as an enemy and striving to reframe the situations they present can prevent us from feeling attacked in the first place, avoiding this stress response altogether.

Besides saving us from getting flustered or sending nasty emails we later regret, studies also suggest this kind of tactic can keep us more physically healthy. Rather than treating each annoyance as a perceived attack, you should focus on understanding any possibly valid basis for the actions of opposing counsel and trying to respond in good faith. This will allow you to keep any emotional reactions in check, and it is nearly always the more legally effective response.

If we truly keep the integral role of opposing counsel in mind as we interact with them, we cannot help but be less offended when they do annoying things. We can then use principles of emotional intelligence to respond effectively and professionally. With greater perspective on their importance to our legal proceedings, we may even gain appreciation and gratitude for our friends on the other side. So the next time you are fed up with opposing counsel’s behavior, and you are about to send an email or make a call you may regret, remind yourself that this loyal adversary gives your work (and your client’s legal success) meaning in our legal system. You might even thank them!

Joseph F. Canamucio, Esquire, is a staff attorney for the Pennsylvania State Education Association, a professional and labor organization representing school employees, where his practice focuses on state administrative and labor law. He is a member of the James S. Bowman American Inn of Court in Harrisburg, Pennsylvania, and a co-chair of its Committee for Career Development. The views expressed in this article are his own.