August 26, 2019
I had the good fortune, and open mind, to stumble across a book published in 1991 and entitled American Bar Association Section of Family Law Ultimate Trial Notebook I. This book is truly an oldie and a goodie. Robert B. Moriarty, Esq., a family law attorney in New York at the time of publishing of this book, contributed an article entitled “The Family Law Negotiator: Successful Divorce and Family Law Settlements.” I had to tap the intellectual archives of second grade to remember how to cite to a source other than a case or statute, but, in an effort to avoid plagiarizing, I think I covered myself.
Moriarty has a section of his article dedicated to “Dealing with the Difficult Lawyer.” He addresses this personality type in terms of negotiations; but, I think his analysis applies to litigation as well as all personal and professional settings and interactions. He recommends the following “effective strategies.” 1. Persevere in doing what you are doing. Focus on the merits of your case, common concerns of both parties, and “if you are trying to resolve those concerns by using objective standards, you are doing the right thing.” 2. Meet the other side on its ground. What this means is “examine the other side’s proposal rather than dismissing it out of hand.” He gives a common example of a divorce case where the mother wants to stay in the family home with the children and the husband wants the house sold so he can receive some of the equity. Moriarty writes that the wrong approach for the wife is to dismiss the husband’s position out of hand. The “better approach” is to analyze the husband’s position and understand it. By examining the other side’s proposal, “you pay courtesy to it, even though you ultimately object it.” He writes “[b]y examining it, you are also able to show exactly why it doesn’t work.” Moriarty next addresses “specific problems” with troublesome negotiators. He references Jan C. Gabrielson, Esq.’s article in the California Family Law Section Family Law News, “Holding Your Own Against Attila the Lawyer.” “Know yourself.” The first rule of dealing with a difficult opponent “is to make sure you do not act like he does.” He warns “[e]xamine yourself, your own motivations and your own conduct.” “The Obstinate Opponent.” A first step toward dealing with such a lawyer, Moriarty writes, is to “make sure they are the problem and not you.” Ask yourself “[i]s your position reasonable.” If it is not reasonable, then correct it: “[t]he earlier you correct your thinking, the sooner and better you are going to be able to reach a fair and reasonable settlement.” If the other side truly is the problem, “explain the nature of the problem to your client, tell your client the other side’s intransigence will likely mean increased time, effort and expense.”
Moriarty writes, and this is so important, “[i]f you are to prevail, it will be because you have convinced the other side your position is correct by testing it in light of mutual interests and against fair standards, by convincing the other side its continued opposition will only mean further time, effort and expenses and delay the inevitable, and by being prepared to wait it out if the other side doesn’t change its position.” In other words, you might have to adopt a “siege mentality.” “The Non-Responsive Opponent.” For lawyers who do not return calls or answer “letters, return fax transmissions” - published in 1991, remember, although there are some attorneys who still fax - he writes the following: “[t]he best and only way to deal with such people is to give them an opportunity or two to respond, as a courtesy, and then make application to the court for the relief you need or to get the case on the trial calendar.” I also add to this section that once the case is in Court, and if the behavior so merits it, a request for attorney’s fees and costs pursuant to California Family Code section 271 may be in order. “Paper Warriors.” This has to be my favorite phrase this month and it is going in the arsenal. Also known as opposing counsel who “‘paper’ the other side into submission.” He warns “do not surrender to the temptation to fight fire with fire.” Instead, Moriarty suggests, in the case of discovery, “seek a protective order, if possible, upon the grounds the requests are over broad, harassing, or frivolous.” I add that you may need to seek attorney’s fees and costs on a need and ability to pay basis if these “paper warriors” drive up fees in the family law case and the other side has more money.
The bottom line, he writes, is “maintain objectivity with respect to the requests of opposing counsel” and “[i]f the information sought is relevant and the proper subject of discovery, simply supply it.” “The Abusive.” In this situation, Moriarty writes, “[t]he simple rule for dealing with people who scream, shout, yell, insult and abuse is not to respond in kind.” In dealing with such a lawyer, he warns “be calm, be firm, be patient.” Most important, he adds, as is common with this type of lawyer, “[i]f the attack is personal to you or to your client, ignore that aspect of it.” The best part, “[a]nd if you find it difficult to remain calm in the face of a raging madman or madwoman, take solace in the words of Oscar Wilde: ‘Always forgive your enemies - nothing annoys them so much.’” In a month where I am seeing on attorney list-servs, social media and in my own law practice questions about how to deal with non-responsive, obstinate, abusive and paper warrior types I hope this almost 30 year old article proves both helpful and insightful.
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