March 2019 CBA Report

O ne of the most challenging aspects of being a litigator is being demonized by opposing counsel. Nothing is more annoying than to be accused of “sandbagging” or “trial by ambush.” So, why after all professionalism courses and the recent focus on health and well-being, do some still insist on unhealthy behavior? You must demonize someone to start a war. Is it easier to fight for your client if you start a war with the other party or attorney? The demonization of others is a common method to stoke hysteria in our society. In the legal profession, it is pervasive. We personalize our disputes. Sometimes our frustration and anger are directed at opposing counsel and/or the opposing party. It’s disconcerting to be on the receiving end of a personal attack when all you are doing is your job. So, what underlies this behavior? Winning is everything. This attitude about winning vs. losing underlies litigation. Our sense of self-worth can be tied to success. We must win at all costs. Sometimes clients believe they are right and become entrenched in their position to their own detriment. If we as lawyers become entrenched along with them, we lose our objectivity and forget our role in the process. It becomes easy to attack the other party or attorney to win the battle. Our role is not just to be the victor but to counsel clients in an objective manner. Empathy and compassion are important skills but there is a point when we can easily cross over and consider our client’s conflict as our own. When you define winning as victory you lose the objectivity it takes to counsel to your client. Maintaining objectivity should be your goal. Labeling the other party is easy and helps us continue to fight. The other party is bad, scum, a deadbeat, a liar and cheat, you name it and you will hear it. The labeling of others is common from clients, but should attorneys use these monikers of opposing parties while doing their jobs? Do we have to do this? This is a sign of personalization. People are not all bad. Sure, there is good and bad behavior but that does not mean the person can be categorized. By labeling the opposing party you lose sight of your role in the process. I can dislike the behavior of someone (even my own client) and still treat them with respect. Losing site of the purpose of litigation. Someone once told me that litigation can be about three things: righting a client’s wrong, the principle of law and/or beating the other guy. Litigation is not the most efficient or cost-effective problem-solving method, but nonetheless, it occurs. Developing animosity for opposing counsel only makes your job harder. All lawyers have a job to do. There will always be a winning and losing side. If your case is weak or your client unlikable it doesn’t help to attack the opposing party or the opposing lawyer. Your feelings about opposing counsel can get in the way of your objectivity. Your focus is skewed, and your client can suffer. Sometimes settlement should occur but is not advised because the fight becomes more important to the lawyer than the client’s interest. Beating the other guy may be satisfying but can cost you and your client. By Tabitha M. Hochscheid Putting the Brakes on Runaway Litigation The underlying factor in all this behavior is stress. The pressure to perform, to be the best, to win at all costs causes stress. When we are stressed we do not behave at our best. It’s not just the pressure from our clients which is the foundation of this stress. The foundation of this stress is our own need to value ourselves based on results. A result driven approach is a recipe for anxiety which can lead to depression. As with all stressful situations, you can reset yourself when you find yourself at a war with opposing counsel. To do so, ask yourself the following: Is this about me? It may seem that the fight is about you, but it isn’t. You are there as an advocate. You may be waging a battle against the other side, but it is never your battle, it is your client’s. Maintain objectivity and you will decrease the stress. What is the other party’s position? Put yourself and your client in the shoes of the other party and their attorney. Every case has two sides and often neither side is completely right or wrong. I always say, there are two sides to every case and somewhere between the two is what really happened and what the court will decide. You can advise your client better if you know the strengths and weaknesses of the other person’s case. Be compassionate with your client but don’t be a sponge for their emotions. Learn to pause. Halt the escalation of tensions. Immediate responses to emails or responding in kind to insults in written pleadings is so easy to do. It’s an automatic response, but it is unnecessary. My solution is to react, wait and then respond. If an email evokes a strong reac- tion, I get up from my desk and wait for the reaction to pass and then respond. Sometimes, the reaction doesn’t pass for a while, even overnight. I have been known to wait 24 hours before responding or to write a response and edit it several times before sending. Stay focused on the process. Litigation is a process. The rules of procedure, evidence etc. are set up for that purpose. When you are in the throes of litigation and your opposing counsel is particularly difficult, it helps to focus on the steps in the process. Focus on your case, the preparation process and not on the opposing counsel. Don’t be distracted by insults and innuendo. You are doing your job and being attacked for it, but that should not be a distraction. Think of it as a compliment because there would be no need for hostility if you were doing a bad job. Finally, you can be considerate to difficult opposing counsel without being weak. Try to find a common ground and make the effort to decelerate your hostility. If you lose your cool or you have a heated discussion, it doesn’t have to shadow the rest of a case. Make an overture even if you are on the receiving end of hostility. Deceleration of conflict is an important tool to lower your stress level and for the adequate representation of your client. Hochscheid is chair of the Health and Well-Being Committee, a current CBA trustee and founder of Hochscheid and Associates LLC. 12 l March 2019 CBA REPORT March 2019 CBA REPORT l 13 Balanced Living Balanced Living