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By: Elizabeth LeReverend
Reprinted with permission from Paralegal SCOPE Magazine: www.paralegalscope.com
We’d like to give a warm and respectable shout out to all of our fabulous friends wading back into the land of legal on this fine Monday! Welcome back to your desk, and let’s not forget all of the accompanying features: a lot of folders, files, papers, highlighters, deadlines, pounds of post its, half-sane esquires, and that ever present sanity-sucking vacuum…all of which come standard within the fun (and crazy) legal trenches! Today, we’re pleased to feature an article by Elizabeth LeReverend, a Licensed Paralegal from Ontario, Canada, and the owner of Paralegal SCOPE Magazine.
Now for the all important question: When being engaged by a troll, should you keep your cool or fight fire with fire? Keep reading to find out.
(If you happen to run across a word or two within this post that seem spelled a wee bit different than how you’re used to seeing ’em, those words were imported fresh from Ontario!)
It may start with a snide comment, an reasonable request, rapid-fire motions, unreturned messages and emails. Then come the condescending letters, accusations of unprofessional behavior and suggestions of incompetence. Suddenly, you face a difficult choice: fight back or ignore? Licensed paralegals who face an opponent who behaves in these ways learn quickly how disruptive a difficult opponent can be. Difficult people cannot be changed, but our responses to them can be.
Wendy Matheson, a lawyer at Torys LLP, wrote an article for the Law Society of Upper Canada’s Gazette: http://www.lawsocietygazette.ca/focus/civility-ten-litigators-to-watch-out-for/ about the types of difficult opponents one may encounter. Matheson identifies 10 types of difficult opponents, including: warriors, escalators, showboats, novices, bad-behavior mimics, stressed-out litigators, pawns, yes-men, bullies and bad losers.
Legal services providers say they have met each and every one of those personalities, in various legal settings. Besides a thick skin, they’ve developed techniques to reduce the negative impact these opponents can have. Taking a step back is a good first step.
Don’t Take the Bait
“Keep it in perspective,” says Ontario paralegal, Elaine Page. Known for her professional demeanour, Page is the 2013 Law Society of Upper Canada Distinguished Paralegal. “Just because they are acting that way, doesn’t mean you have to get down in the mud with them. Often, they are baiting you. If you behave in the exact opposite way, you can’t lose.”
Fighting “fire with fire” is to be avoided. Page knows it’s easy to get sucked in, “When opposing counsel is saying you did this, and failed to do that, especially if it is inflammatory, like saying they were not served. It’s tempting. But let them finish, even if what they are saying is outrageous. It’s about staying professional, even when they’re trying to push your buttons. The court will appreciate your professionalism.”
Page has worked as a paralegal for some 20 years. She says she encountered condescending tones and behavior more often before paralegal licensing became the law in Ontario. She has noticed that over the past five years, lawyers have become familiar with the skills and competency that licensed paralegals bring to the legal system. “Things have changed substantially,” she says. “There’s a different level of respect now.”
Being fully prepared and unfailingly professional is the best defence when facing a difficult opponent, Page advises.
Aggressive Advocacy Not Necessarily a Bad Thing
Different people have different touchstones of provocation. For some litigators, all it takes is one “govern yourself accordingly” to set things off, Matheson notes. In some, aggression is an affectation; in others, it is innate.
George Brown, a senior Ontario paralegal, has met a few of those types over 20 years of litigating. One licensee comes to mind when the topic of civility is raised. “He has an extremely aggressive style. He will tell opposing counsel what a dismal chance they have of success, that there are weaknesses in their arguments. He blind-sides his opponents. I’m not entirely sure it is a disservice to his clients, because they know they really have a warrior on their side.”
Page recalls a fellow licensee who sends condescending correspondence. These include suggestions that she does not understand various rules of the court. Page responds politely, but firmly. “This particular licensee is simply exceptionally aggressive. That is her style. I finally wrote back and asked her whether she realized I had been on the Rules Committee (of the Superior Court of Justice).”
Some counsel deploy a “showman” style, Matheson says. These advocates behave civilly when dealing on the telephone or in person, then copy clients on “zinger” letters that bear little or no relationship to the discussions. “One of my colleagues got a letter from opposing counsel that read: ‘Your arrogant and block-headed attempt to bludgeon opposing counsel into submission with Rule 57.07 provided my client with a nice bit of entertainment,'” Matheson recounts in the Gazette article.
Some opponents view their cases as all-or-nothing wars. Matheson says these litigators seem to view rudeness as a strength. Interruptions, interjections and objections are examples.
Handling Interruptions and Interjections
Esteemed criminal and Constitutional lawyer Clayton Ruby has simple advice for handling interrupting counsel: “Don’t give them the opportunity.” He suggests licensees be conservative in submissions, to minimize the opportunity to interrupt. “After two or three interruptions, I sit down and say, ‘Your Honour, I cannot continue.’ Let the judge be responsible for directing counsel. Judges generally hate interruptions, and anyone watching will think, this does not look appropriate to me.”
Ruby says responding in-kind to a difficult opponent is “what not to do” in these rare cases. “You don’t want to scare the judge, to have the judge worry that he or she is about to lose control of the courtroom and the proceeding.”
Page agrees. “Do not bicker back and forth with opposing counsel. Speak to the justice, not to counsel. I’ve said to judges, ‘Please ask opposing counsel not to interrupt me during my submissions.’ They’ve embarrassed themselves. I’ve just pointed it out.”
Some legal professionals adopt a persona usually seen only in fiction. Matheson says these licensees have “learned bad habits by bad example, in court, on TV, or in their dealings with other lawyers,” she writes. “These litigators assume that if it is OK for someone else to behave in a certain way, it is an acceptable way to behave.”
Personal attacks are not only “out of bounds,” Brown cautions – they can backfire. “If you attack the messenger, you’re showing that you don’t have a good case, because if you did, you would speak to the issues.”
Conduct Has Consequences
Bullies exist in the legal profession, as in other fields. Matheson writes that some litigators “treat people miserably until someone makes them stop.” Email and social media make it easier than ever for legal bullies to misbehave and accuse other licensees of unprofessional conduct.
Egregious behavior that is on the record, or has negatively affected a client, should be reported to the licensing body, senior licensees say. In Ontario, that means the Law Society of Upper Canada. Ruby notes that the Law Society may ask licensees to “come in for a chat” to explain their words and actions. “If you’re smart, you say, ‘Oh, my goodness, I was having a bad day. I apologize and will write a letter of apology if necessary.'”
Darryl Singer, a senior litigator, says that uncivil litigators “remind me of how I do not wish to behave.”
The key is to recognize that you can’t change others, but you can control how you respond to them. “It takes inner strength at times, not to respond in the same manner. You must consciously decide to be civil. Careers and lives are affected” by inappropriate behavior. “Be calm, rational and clear-thinking. That will win the day.”
Bad behavior can affect clients and drive up costs. “Civility makes the difference between a four or five-day trial and being able to settle without a trial,” Brown says. “I have colleagues who, if they are on the other side, I know we will be able to settle the matter in the best interests of the clients.”
Page says that licensees who are arrogant in an attempt to impress a client take the risk of having the strategy backfire. “The court can and will chastise a licensee who acts that way, and there may be cost consequences,” she says. “I’ve seen that happen hundreds of times in court.”
Brown has seen courtroom arrogance play out to the detriment of opposing counsel. “Being prepared is a greater advantage.” Early in his career, Brown opposed counsel with greater experience and confidence. “I knew I had won because I had hardly slept for days. I worked 18, 20 hours a day, preparing factums and reviewing the Rules. He was over-confident and I was the opposite.”
Managing Client Expectations
Handling clients who expect nothing less than animosity toward “the other side” can lead even the most civil of litigators into temptation.
“A client can become entrenched in their foxhole, to the point where no agreement on issues is available,” Brown says. “The case must go to trial. There is nothing at all wrong with reaching out to opposing counsel with reasonable requests, especially if you still want to have a relationship with them, or if your client will have a relationship with the other party. You never want that to happen. As paralegals, we are problem-solvers.”
Then there are the sore losers. Sometimes, a legal professional is civil — until their case starts to go awry. “At that point,” Matheson writes, “They begin to lash out at everyone, including counsel and even the court, making often extreme and totally unwarranted allegations of misconduct. Ultimately, like all uncivil conduct, this type of behavior reflects badly on that litigator’s case, not yours.”
Experience plays a role. Matheson says a lack of practical training and mentoring can create litigators who “flail about in their practice and in court,” as they learn how to behave.
Brown recalls his early career, when he was “young and aggressive,” anxious to push the boundaries. Eager to please his client, Brown drafted an aggressively worded motion, chock-a-block with rules, citations, case law and hyperbole.
When he walked into court and met his opponent – Elaine Page – he immediately felt embarrassed. “I met this nice woman, and realized I had behaved so unprofessionally. You have to be careful, how far you go. You can be destroyed. I learned from that, and from my peers, that my words and arguments have a profound effect.”
Each One, Teach One
As he enters his 21st year in practice, Singer laments the lack of appropriate mentoring that once helped new advocates to learn the ropes of litigation civility. Mentors can combat the combination of lack of experience and fear that result in poor behavior.
“When I started out, it was easy for a young litigator to go to court every day,” Singer says. Mandatory mediation and other strategies in Ontario have reduced those opportunities; an influx of both law and paralegal graduates exacerbates the court-time crunch.
Singer advises that new legal professionals reach out to their seniors and to formal mentoring opportunities.
“Reach out to the different organizations. You will find mentors. I don’t know anybody who would refuse a request for advice. Just call someone and say, ‘Can I bounce something off you? I have this issue, here is what’s going on.’ I take mentoring very seriously and I think most senior counsel do. Ultimately, this is the future of the profession.”
Senior licensees can put matters in context, and offer advice, Ruby says. “New licensees are less able to know what to do” when opposing counsel appears to be unco-operative or uncivil. “Ask for an adjournment – with consent of opposing counsel, if they’re smart. Take that half hour and think about how to respond. Call someone more senior and they will advise you. That’s why it’s called a profession.”
The Bigger Picture
One issue that can’t be overlooked is that mental health and substance abuse affect behavior. “Opposing counsel may be going through a divorce, having financial issues, addiction issues, or other problems they carry with them throughout the day,” Singer says.
One sign that mental health or substance abuse issues – or both – are affecting a licensee is a marked change in behavior, says Singer, who volunteers as a peer counsellor through the Ontario Lawyers’ Assistance Program.
“Some people are just difficult,” Singer acknowledges. “But if you have been dealing with the same licensee for years, and there has never been a problem, and suddenly they are not returning phone calls, not responding to requests, or if they have always been unfailingly polite and now they are not interested in civility – that is a sign that there is a problem.”
Ruby has also seen professionals affected by mental health and substance-abuse problems over his long career. While not common, uncivil litigators are “an embarrassment for the profession” that should be viewed in context. “We’re Canadians,” Ruby says. “We tend to be polite and listen to the other side.”
Brown keeps his “eyes on the prize.”
“When the time comes for me to sit down and reflect on my life and my career, on how I carried myself,” Brown says, “I want to be able to say that I’m proud of my representation, and of my profession.”
Related article, by Darryl Singer: “Time for the Profession to Talk about Depression” http://wp.me/p3ne8I-rA
Related article by Elizabeth LeReverend: “Dealing with Difficult Clients” http://wp.me/p3ne8I-2q
Elizabeth LeReverend is a Licensed Paralegal with an extensive background in writing, editing, technical communication and research. She publishes Paralegal SCOPE Magazine, the go-to source for news, information and features for paralegals in Ontario, Canada.
Be sure to check out Elizabeth’s online magazine at: www.Paralegalscope.com.
© Elizabeth LeReverend and Paralegal SCOPE Magazine, 2013.
If only we could find a way to turn off the switch on that ever present, sanity-sucking vacuum, we’d be all set! Now go charge into your work week, and have an absolutely great one, paralegals! Either find it great, make it great or leave it great. Whatever works! (We find that caffeinated beverages of happiness go a long way in one’s preparation process/progress/promise not to harm the evil doers)!
We’ll see you soon.