Practice tip: dealing with incompetent opposing counsel
Posted on February 4th, 2011
A Twitter friend, @legaleagle, was recently talking about an opposing counsel who is lazy and doesn’t want to do any work (draft orders, settlement proposals). I haven’t had exactly this problem, but it made me start thinking about bad opposing counsel and all the annoyance that goes into having a case with one of them.
Before you start practice, you might think that having an incompetent/lazy/bad opposing counsel might be a good thing. God knows clients seem to think so. But here’s the thing: having a bad opposing counsel just means all kinds of more work for you. In fact, the second best thing* that can happen to a case is to get a fabulous opposing counsel. (And you can try to explain this to clients, but they will never understand.)
- Incompetent counsel don’t follow the rules, because they don’t know the rules. This means you have the choice between educating them on the rules, trying to exploit their failure to follow the rules (while knowing that the judge will likely just ignore a non-critical rule violation), or just dealing with their failure to follow the rules while dropping a somewhat snarky and coded footnote in your response to their motion about the rules they’ve broken. Guess which one I go with? Yes, snark. I’m petty that way.**
- Incompetent counsel can’t write a coherent argument. This sounds like it would be great, but instead, it’s awful. When you get a rambling memorandum of law and you’re not sure if it’s arguing statute of limitations or statute of frauds or Statue of Liberty…that sucks. Because you will spend more of your time trying to figure out what they’re saying – so you can respond – than you will on your actual response. Aside from dealing with boss issues and clients who called five times a day and sent me Linked In requests, this was my most frustrating area of practice. Oh, and your response? It’ll take you four times longer to write than if you’d gotten a clearly written motion.
- When you go to oral argument, they will stand up and ramble. The judge will either ask them pointed questions, or will just leave it to you to rebut the eleven completely random “points” the incompetent attorney just made. It can be hard to hide your irritation at this point, but you have to.
- Incompetent counsel won’t work to resolve a case. We all know most cases settle, right? Incompetent counsel don’t go through the steps to get the case resolved. If there’s an IME (Independent Medical Exam) to be done, they don’t arrange for it until a week before the settlement conference. Or they don’t make a settlement offer before the settlement conference. (Oh, and mediators just love that. Really.) You’ll be prepping for trial when they will suddenly have a conflict that requires a reset. So, so annoying.
The only way you can deal with these attorneys is to make sure all of your communications are clear. Limit your communications to one point per call/fax/email, so you can keep this person on track. If you get more complicated than that, you will run into trouble. If a pleading or motion is really so confusing or vague that you can’t figure out what it’s trying to say, move to strike/clarify/whatever your rule allows for. (Nicely and with no snark.)
Bonus practice tip: the sad thing about this situation is that the incompetent counsel may be incompetent for a reason: alcohol/drug use, personal problems, the onset of dementia. Keep this in mind during your interactions. Depending on how bad it is, you may have a duty to report the attorney to the bar.
*The best thing: the other side doesn’t enter an appearance and you win by default.
**I have to edit my work to remove snark. My first draft is catty, but by the end, it’s tame. Except for footnotes.