April 10, 2013
Last week, I wrote about things to keep in mind before you go to court. Today, I’m going to talk about that same topic.
However, where last week focused on the “what”, today I’m going to discuss the “who:” who are the types of attorneys that you may encounter in court.
Below is a list of five different kinds of these attorneys. Not everyone you meet will fit into these categories, but most will (some may fit into more than one).
Hopefully, understanding the different kinds of attorneys out there will better prepare you for dealing with them in the best possible way.
As a newer attorney, most attorneys may seem like veterans. However, this particular type is more specific than simply an “experienced attorney.”
The “veteran” is an attorney who has been practicing for 25 years or longer, often within the same practice area.
They are typically very set in their ways, know (and may be on friendly terms with) all of the judges they come before, and, unfortunately, don’t think much of newer attorneys.
This type can be particularly difficult for newer attorneys to work with.
Judges who may be unsure on how to rule on a case may tend to defer to the arguments of the veteran, wrong though they may be, simply because the veteran has been practicing for so long, and the judge is more familiar with him or her.
This also makes settlement more difficult for your side, since veterans are often quite confident when matched up against newer attorneys, even if the law and facts aren’t on their side.
The biggest thing to keep in mind when dealing with this type is to understand that, while an attorney’s understanding of court procedures may be directly linked with experience, understanding of the law is not so constrained.
In other words, you may understand the law as well as or better than the veteran, so don’t let one steal your confidence in court.
The problem, though, is that you never know how things will go in court, wherein, as mentioned above, the veteran has the distinct advantage of experience.
So while you shouldn’t let the veteran steal your confidence, you should also be aware that the advantage is likely his or hers. Negotiate accordingly.
The attorney who refuses to settle
“Refusing to settle” here can mean one of many things.
First, it could mean that the attorney doesn’t even open settlement dialog with you. This is usually chalked up to inexperience (so, if you didn’t know already, attorneys nearly always meet before a hearing to try to come to a resolution, even if both already know that one isn’t possible)
However, even if you were to initiate settlement discussions with such an attorney, “refusing” could be a constructive refusal – that is, all of the offers made by the attorney are completely untenable to your client. Such an attorney may be inexperienced in the courtroom (i.e. he or she is primarily a transactional attorney), or may also fit into the fourth and/or fifth categories below.
So what do you do? Good question.
Your only real option is to attempt to settle in good faith, but don’t let this attorney bully you into settling for something that is not in your client’s best interests. You must be willing to go to court.
The amicable attorney
If you’re lucky, you’ll end up with this type as your opposing counsel.
This attorney knows that being an attorney is just a job, and that the interests of the client are not his or her own.
Obviously, this type is the easiest to work with, and for good reason: they are pleasant to communicate with, and, most of the time, they have the understanding that the attorneys are not the same people as the clients that they may represent.
In spite of all this, you must still be aware that this person is your opposing counsel first, and your friend second.
Just because they may have a healthy amount of objectivity doesn’t mean that they don’t have their clients best interests in mind.
The advice here is, while this type may be the most pleasant to work with, don’t let your guard down.
This type is the exact opposite of the previous type. They take the “adversarial process” to new heights, and they can be one of the worst aspects of going to court.
Where the amicable attorney is pleasant to communicate with, the jerk just wants to be, well, a jerk.
They will mock your client’s case, belittle your legal argument, and sometimes just conduct themselves with a complete lack of decorum in settlement.
Negotiating with this type is also particularly frustrating because their first offer is something along the lines of, “give my client everything he’s/she’s asking for, and we’ll accept it.”
The best advice for dealing with this one is to not let them get under your skin. Be the better attorney. And good luck.
The attorney who’s lost objectivity
This is an attorney who fails to see the distinction between the client’s interests and his or her own. As such, they are a very difficult type to negotiate with because they often let their emotions override their detached analysis of a situation.
The worst part is that there may not be anything you can do to jolt them back into seeing things objectively again.
The best way to deal with this type during settlement is to subtly remind them of the benefits of coming to an agreement (keeping the power in the hands of the parties, removing the element of chance that comes with going to court, etc).
Also, as is the case for dealing with the rest of the types, don’t let the opposing counsel’s behavior influence your objectivity, confidence, and professionalism.
Hopefully, being more aware of these types can help you with that.