Marty Dolan, principal at Dolan Law and his associate Karen Munoz represent victims of wrongful death and personal injury. His column “Law and Wellness,” appears in the Chicago Lawyer and her column appears regularly in the Law Bulletin. This week’s blog is written by Karen Munoz.
Difficult Opposing Counsel?
I recently spoke with an attorney who said he felt the need to introduce mediators purely for supervising the discovery process. Apparently there are many others like him who feel that the establishment of such an institution could adequately prevent and resolve bitter drawn-out discovery disputes.
So I got to thinking about some of the times when we might encounter an opposing counsel who we perceive to be trying to frustrate the pre-trial stage of a case with obstructionist tactics and how best to respond to it.
Whether it’s deliberately withholding documents, answering all discovery requests with blanket objections or fling/threatening to file spurious motions, there are lots of ways a lawyer could potentially try to unsettle an opponent and thwart the progress of a case. So what should we do if we find ourselves in one of these situations?
1. Pick Up the Phone
While it is probably naïve to assume that no-one is doing it deliberately, a lot of the time, I think, it comes down to miscommunication. Picking up the phone, making a call to opposing counsel and calmly outlining your concerns can go a long way to straightening things out.
In my view, this is the most straightforward way of resolving discovery disputes or perceived obstructionist tactics. In the case of blanket objections to discovery requests, for example, it may be that one or two words are too broadly defined and your opposing counsel feels it’s a bit too burdensome or irrelevant. A short conversation can clear this up without getting mired in an acrimonious dispute at an early stage of a case. Of course, it may be that the opposing counsel is unwilling to work with you, in which case, you have at least found out for sure.
2. Don’t Play Them at Their Own Game
If that turns out to be the case, there is always the temptation to fight fire with fire by issuing wholesale objections to their requests and trying to impede the construction of their case. A judge will be unimpressed by this, as he or she will be by your opposing counsel’s behavior.
So rather than getting drawn into a cat fight, you could create an honest record of what has happened. Writing a letter to the opposing counsel indicating that you tried to reach an amicable resolution and that you’re still open to it lets the judge see that you are making an honest and direct attempt to reach a mutually beneficial resolution and puts pressure on your opposing counsel, in a perfectly legitimate way, to start doing the same.
3. Stick to Your Guns
Sometimes the goal of obstructionist tactics is to make you doubt your own ability or put you out of your comfort zone. But don’t let it get to you. Continue to build your case as you always do. There are ways of overcoming obstacles presented by difficult opposing attorneys. In the discovery example above, you could issue further, succinct and more narrow requests to admit on certain facts. If the rejections continue then one option is a motion to compel. It shouldn’t have to come to that but you are obviously well within your rights to do so.