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Most of us already know from our legal training that lawyers have an ethical obligation to diligently advocate for their clients. However, many attorneys act with reasonable constraints about the tactics they use to advocate for their clients in order to preserve their reputations and possibly because long-term relationships with adversaries can assist clients over time. Nevertheless, lawyers sometimes employ annoying tactics either because of their personalities or because they are simply doing their jobs trying to advocate for their clients. Even though such tactics can make attorneys difficult for adversaries to deal with, they can often lead to better results for clients, at least in the short term.
After I left Biglaw and began practicing as a “street lawyer” who actually went to court and took depositions, I realized how important relationships with adversaries were to a representation. Adversaries usually have a say about a number of courtesies, such as extensions, accepting service over email, and other matters. Moreover, having a good relationship with adversaries can help lawyers resolve matters and obtain favorable settlements for clients. As a result, it may make sense not to be needlessly annoying to adversaries so that all of these benefits of long-term connections can be realized. However, I have seen time and time again in my career how annoying lawyers can sometimes obtain short-term advantages for clients.
For instance, one time, I heard about a deposition in a mass torts case where one of the attorneys who was representing a defendant at the deposition was well known for being somewhat annoying in his tactics and for staying at the periphery of the social circle of lawyers who practice in this area of the law. I can attest to these facts since I practiced in this mass torts circuit and had firsthand experience with this lawyer.
At the deposition, the lawyer objected to pretty much every question the plaintiff’s attorney asked her client (in this mass torts case, it was common for plaintiff’s lawyers to ask questions of their clients at depositions, I know this is somewhat uncommon in other contexts). In any event, the objections were mostly pointless since the jurisdiction in which we practice preserves all objections for trial except for objections as to form, and this lawyer was objecting for all types of reasons. The plaintiff’s lawyer got so frustrated with this attorney that she agreed to stipulate this lawyer’s client out of the case then and there to avoid the meaningless objections being made by that attorney. Now granted, I was not at this deposition myself, but it was totally the type of thing that could happen in those cases, and being annoying helped that lawyer get a significant advantage for his client.
At another time in my career, I represented a corporate client that had a representative who was going through some health issues. It was pretty clear that the potential deponent was too sick to provide reliable information, and that a deposition would be harmful to her health. Even though we got proof that this was the case, my adversary insisted that this deponent be produced for a deposition. We offered to proceed by written questions, provide any other discovery my adversary wished, and other compromises, but the adversary would not budge. To my adversary’s credit, he stated that as a human, he agreed with me that this person probably should not be produced for a deposition, but as a lawyer, he needed to be annoying to get every advantage he could for his client. Especially since he made it clear that this annoying tactic was part of diligent representation, I did not hold it too much against my adversary that he was taking the position he was.
In any event, this annoying tactic created an immense amount of stress and uncertainty with my client. My client definitely considered settling the case instead of possibly needing to produce a witness for a deposition that could be harmful to this person’s health. I of course do not condone sticking to litigation tactics that could cause a bona fide health issue, and if I was in my adversary’s shoes, I might not have insisted as much that a witness be deposed even though a deposition could cause health issues. However, employing this annoying tactic did have some short-term benefits for the adversary’s clients, even though it may have frayed relationships over the long term.
I am sure that every lawyer has a story of somewhat-annoying adversaries employing annoying tactics and getting unpredictable results, and if you have stories of your own, please reach out to me, I’d love to hear them. Again, employing annoying tactics can harm long-term relationships between adversaries and may not be good practice in many contexts. But somewhat unfortunately, attorneys can obtain short-term benefits for clients by employing annoying tactics that some attorneys may not feel comfortable using.
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothman.law.
