Negotiating with Belligerent Opposing Counsel
Debra L. Bruce, JD, PCC.
Initially, I tried letting him vent. When he wound down and I responded, however, he launched into another ear-splitting tirade. In a very calm voice, I said, “I’m going to hang up the phone now. Call me back when you have calmed down, and we can discuss it further.” I pushed the disconnect button.
The phone rang immediately, and the screaming began again. I responded calmly, even gently, “I’m going to hang up again. Call me back when you calm down.”
The third call began with him yelling, “Stop treating me like a child!”
“I will,” I reassured him, “when you stop acting like one.” I quietly hung up again.
A few minutes passed before he initiated the fourth call. This time he spoke in a moderated voice, and we resumed our negotiations. We were able to keep our negotiations civil after that. Whenever he teetered on the verge of losing his temper, I just got quiet. He reigned himself in.
Escalating Attorney Incivility
Unfortunately, today you probably can’t find a lawyer without a “belligerent opposing counsel story” like the one above, or worse. Articles about the increasing incivility of attorneys fill the bar journals and blogs. YouTube sports a video of lawyers almost brawling during a deposition. Courts and bar associations have worked to address the issue. Over 20 years ago the Supreme Court of Texas adopted “The Texas Lawyers Creed –A Mandate for Professionalism” in an effort to confront the problem. It did not work.
What can you do if you encounter belligerent opposing counsel?
1. Remain calm. Recognize that this is a tactic to get you rattled so that you’ll make mistakes, or to bully you into giving them what they want. Psychologists and brain scientists tell us that when we feel threatened, our “reptilian brain” (called the amygdala) takes over and prepares us for fight or flight by rerouting blood flow to our arms and legs. Our focus narrows, and blood flow to the prefrontal lobe (the rational thinking section of the brain) also diminishes, literally making us dumber. So if we jump into the fray, we do so with reduced ability to reason things out or to recognize broader options.
2. Behave professionally. Even if opposing counsel’s conduct is an intentional tactical maneuver, they will also experience an “amygdala hijack” to some degree. Their own behavior will signal their brain that they are in a threatening situation. If you continue to behave calmly and professionally, however, you will demonstrate that (i) such tactics don’t work with you, and (ii) this situation calls for rational problem solving, rather than brute force. It will help them to calm down.
3. Take a break. When tempers flare, the fight or flight hormones and chemicals course through our bodies. Even when our rational brain begins to regain control of our thinking, it takes a few minutes for the chemicals to dissipate from our bloodstream. Let counsel know that you are willing to keep talking, but that you need to step away for a moment.
4. Seek common ground. Lessen the threat to other counsel by reminding them of the areas where you are not in dispute. Wherever possible, let them know that you want the same thing they do. If you have already reached some agreements, reiterate them. Reach up to a higher plane, above the current issue, to identify a goal that you both agree upon. Perhaps your clients both want to resolve the dispute with the minimum of publicity. Maybe as transactional lawyers you both want to avoid being labeled as “deal-killers.” Acknowledging common goals and agreements can foster more cooperative negotiations.
5. Express your positive intentions. Of course, they will assume adversarial intentions on your part. By negating nefarious intentions and contrasting them with your good intentions, you may make the negotiations feel a bit safer. That makes room for more collaboration in problem-solving. You might say, “We don’t believe in trying to squeeze every dollar we can out of the deal. We want to have a good relationship with you through the transition.” Or perhaps, “We don’t want to bankrupt your company. We want access to sufficient resources to address future medical needs arising out of this accident.”
If this all sounds too “soft” to work with your opposing counsel, consider this story from Memphis attorney Maureen Holland. She used to be referred to as a “pit bull” until she found a better way to communicate and negotiate.
Maureen received a call from opposing counsel in which he opened with a threatening description of the harsh actions he would take if Maureen didn’t agree to what he wanted. She responded that she realized that he would conduct his case in the way he believed was appropriate, but she wanted to let him know that she wouldn’t be engaging in similar behaviors.
As though he hadn’t heard her, opposing counsel forcefully reiterated his demands and the dire consequences of refusing to comply with them. Again Maureen assured him that she would not be engaging in such tactics. Only after a third round of his angry threats, followed by Maureen’s calm assertion of her intention to behave reasonably, did the other lawyer seem to grasp what she was saying.
For the first time, he paused. Then he said, “Well. What do you want?” From there they managed to move forward to negotiate a settlement in a professional manner.
Do you have a story about how you have successfully dealt with belligerent opposing counsel? I would love to hear it in the comments below.