Plaut Spouts: Dealing with the Difficult Lawyer

January 20th, 2020 By David L. Plaut

One of the great pleasures of law practice is the camaraderie between lawyers and professionalism that exist despite the often high-stakes nature of litigation.  On the other hand, there’s nothing worse than having to deal with opposing counsel who is rude to you and your staff, belligerent in his demands, oblivious to the clear requirements of Texas law, and contentious as a matter of course.  Dealing with jokers of this sort is a skill that can be learned.  I’ve often told rude opposing counsel “If I had any feelings, they’d be hurt!”  With the obvious subtext being that I don’t care about your tomfoolery and you’re not going to get a rise out of me.

Here’s a great example of one of our lawyers dealing with difficult opposing counsel making improper speaking objections in a deposition:

Q. So there’s damage that you can’t see on the right side of the motorcycle? Is that what you are saying?
A.That’s correct.
Q.Okay. If you want to flip to the next page.
PLAINTIFF LAWYER: And I’m going to object as to these photos being entered into any evidence whatsoever since they haven’t been previously produced.
PLTF LAWYER: My client’s motorcycle —
Q.If you could turn to the next page.
PLTF. LAWYER: I’m still actually making my objection for the record. And I’m not sure if you’re new at this, but the court reporter can’t take us both down.
DEF. LAWYER:  I’m not new at it, but your objections are also limited to form or nonresponsive or harassment. So if we could keep going with the deposition that will be helpful.
PLTF. LAWYER: So are you admitting that you are talking over me in order to make sure that the transcript doesn’t reflect what I’m saying? Is that your –
DEF. LAWYER:  I’m saying that I’m asking you to limit your objection. Your objection has been entered and noted. And now I’m asking the next question, since I’m taking his deposition. So my next question.
PLTF. LAWYER: I’m going to interrupt again because you interrupted me during my objection, and I’m going —
DEF. LAWYER:  Finish your objection, please.
PLTF. LAWYER: Please stop talking over me.
DEF. LAWYER:  And then I’ll ask the question.
PLTF. LAWYER: I’m actually going to terminate this deposition.
DEF. LAWYER:  If you want to terminate it —
PLTF. LAWYER: You cannot continue talking over me and expect to have a clear record or to not give this poor court reporter a headache. If this is your idea of professionalism, it stinks. Because she’s actually your court reporter. You hired her. And now you are just talking right over me for the sake of talking over me because you what? Think you are important?
DEF. LAWYER:  I’ve asked you multiple times to limit your speaking objections, which is also permissible under the rules.
DEF. LAWYER:  You also interrupted me. I waited until you were done –
PLTF. LAWYER: Are you 12?
PLTF. LAWYER: Do you not know how people communicate?
DEF. LAWYER:  I’m sorry. That’s also very unprofessional.
PLTF. LAWYER: No, it’s actually —
DEF. LAWYER:  I’m just trying to ask my question.
PLTF. LAWYER: I’m trying to get a single objection on the record, and now this is –
DEF. LAWYER:  Get your objection on the record.
PLTF. LAWYER: Oh, my God. Are you married?
DEF. LAWYER:  What is your objection?
PLTF. LAWYER: Because I’m not married to you. You don’t get to talk to me like this.
DEF. LAWYER:  What is your objection?
PLTF. LAWYER: Okay. One more time. Can you go back and read the objection that I was stating and see what you got of it so I can see what I should put on it?

The long-suffering defense lawyer here did a great job taking the Plaintiff’s deposition despite rude and frequent interruptions (which were not in compliance with the rules of civil procedure or common decency for that matter).  My general approach with this sort of behavior is to ignore opposing counsel as much as possible.  You might call it passive-aggressive disinterest. Not much more than “objection sidebar” or “that’s a speaking objection” and/or “are you through?” and then turning to the witness stating “you can answer the question” or “do you remember what the question was?  Now, you can answer the question.”

I try to limit negative interaction with opposing counsel as much as possible for a number of reasons.  First, it bugs loudmouth lawyers if you ignore them.  The boorish behavior is intended to get under your skin.  If you lose your cool, then they’ve won (albeit a small insignificant victory).  Second, the back and forth between lawyers is intended to disrupt questioning.  Opposing counsel has a right to make objections.  They do not have a right to say more than “objection, form” or to make speaking objections.

What do you do, when a lawyer disregards the rules?  If I’m taking the deposition and it’s going well, I largely ignore the interruptions or respond “Objection, that’s a speaking objection.”  Or “Objection, sidebar.”  And then I’ll continue.  If opposing counsel is harassing a client, I’ll object and then shut it down: “Objection form.  And that’s a harassing question.  I’m instructing my client not to answer that question.”  Or I may say something like “Objection, asked and answered.  This is a repetitive line of questioning and I’m instructing my client not to answer” or more simply “move along counselor.”

The problem with instructing the witness not to answer is it’s possible you’re buying satellite litigation on the propriety of discontinuing the deposition, maybe a motion to compel, possibly sanctions.  Judges hate having to police lawyer misbehavior and could very likely have a “plague on both your houses” reaction at the hearing.   That possibility isn’t a big a deal if you’ve got an attorney badgering your client unfairly and continuously.  But I very rarely shut down depositions or threaten to shut them down.  We’ve got so many cases, so many depositions, so much discovery to do that satellite litigation on the question of whether some dummy’s following the rules rarely results in actually filing a motion for sanctions.

You may want to consider, as my partner Catherine has, perfecting a “withering look” that brings obnoxious opposing counsel to heel.  Just remember – however you approach difficult counsel – that when you wrestle with a pig, you both get dirty, but the pig likes it!