Making snide comments. Opposing reasonable requests. Filing rapid-fire unnecessary motions. Ignoring phone calls and emails. Condescending letters copied to clients. Interrupting during submissions. Accusations of unprofessional behaviour. Suggestions that a licensee is not competent.
Chances are, each paralegal has either faced such an opponent already, or soon will. Inside the courtroom and out, these opponents make the smallest tasks more difficult, add to stress and drive up costs.
Difficult people cannot be changed, but our response to them can be.
“I’ve had my share” of difficult opponents, says Elaine Page, recipient of the 2013 Law Society of Upper Canada Distinguished Paralegal Award.
“Keep it in perspective,” Page advises. “Just because they are acting that way, doesn’t mean you have to get down in the mud with them. Often, they are baiting you. If you behave in the exact opposite way, you can’t lose.”
Over the course of 20-plus years advocating for clients, Page encountered condescending tones and behaviour more often in the years before paralegal licensing. She has noticed that over the past five years, lawyers have become familiar with the skills and competency paralegals bring to the legal system.
“There’s a different level of respect now.”
Know Your Opponent
Wendy Matheson, a lawyer at Torys LLP, wrote a Law Society Gazette article about the types of difficult opponents one may encounter.
George Brown, a senior paralegal, has met a few of those types over 20 years of litigating. One licensee comes to mind when the topic of civility is raised. “He has an extremely aggressive style. He will tell opposing counsel what a dismal chance they have of success, that there are weaknesses in their arguments. He blind-sides his opponents. I’m not entirely sure it is a disservice to his clients, because they know they really have a warrior on their side.”
C’est la guerre!
For some people, all it takes is one “govern yourself accordingly,” and the letter war is on, according to Matheson. Breaking the pattern can calm things down. “Choose not to escalate. There is a good chance the other side will not escalate either.”
Some counsel deploy a “showman” style, Matheson says, behaving civilly when dealing on the telephone or in person, then later copying clients on “zinger” letters that bear little or no relationship to the discussions.
“One of my colleagues got a letter from opposing counsel that read: ‘Your arrogant and block-headed attempt to bludgeon opposing counsel into submission with Rule 57.07 provided my client with a nice bit of entertainment,'” Matheson recounts in the Gazette article.
A fellow licensee has sent condescending correspondence to Page, including suggestions that she does not understand various rules of the court. Page responds politely, but firmly. “I finally wrote back and asked her whether she realized I had been on the Rules Committee (of the Superior Court of Justice).”
~ Clayton Ruby, CM – Criminal & Constitutional Lawyer
Do As I Say — And As I Do
Criminal and Constitutional lawyer Clayton Ruby, CM, has simple advice for handling interrupting counsel: “Don’t give them the opportunity.” He suggests licensees “Be conservative in your submissions, to minimize the opportunity to interrupt. After two or three interruptions, I sit down and say, ‘Your Honour, I cannot continue.’ Let the judge be responsible for directing counsel. Judges generally hate interruptions, and anyone watching will think, this does not look appropriate to me.”
Ruby says responding in kind to a difficult opponent is “what not to do” in these rare cases. “You don’t want to scare the judge, to have the judge worry that he or she is about to lose control of the courtroom and the proceeding.”
Egregious behaviour that is on the record, or has negatively affected a client, should be reported to the Law Society, senior licensees say. Ruby notes that the Law Society may ask licensees to “come in for a chat” to explain their words and actions. “If you’re smart, you say, ‘Oh, my goodness, I was having a bad day. I apologize and will write a letter of apology if necessary.”
Fight Fire With Fire – Get Burned
Fighting “fire with fire” is a slippery slope that ought to be avoided. Page says it’s easy to get sucked in, “When opposing counsel is saying you did this, and failed to do that, especially if it is inflammatory, like saying they were not served. It’s tempting. It’s about staying professional, even when they’re trying to push your buttons. The court will appreciate your professionalism.”
~ Darryl Singer, Civil Litigator
Bad behaviour can affect clients and drive up costs. “Civility makes the difference between a four or five-day trial and being able to settle without a trial,” Brown says. “I have colleagues who, if they are on the other side, I know we will be able to settle the matter in the best interests of the clients.”
Manage Expectations – Yours And Theirs
Handling clients who expect nothing less than animosity toward “the other side” can lead good representatives into temptation.
“A client can become entrenched in their foxhole, to the point where no agreement on issues is available,” Brown says. “The case must go to trial. There is nothing at all wrong with reaching out to opposing counsel with reasonable requests, especially if you still want to have a relationship with them, or if your client will have a relationship with the other party.”
Guidance, Mentoring Necessary
Experience plays a role in civility. Matheson says a lack of practical training and mentoring can create litigators who “flail about in their practice and in court,” as they learn how to behave.
Brown recalls his early career, when he was “young and aggressive,” anxious to push the boundaries. Eager to please his client, Brown drafted an aggressively worded motion, chock-a-block with rules, citations, case law and hyperbole. “You have to be careful, how far you go. I learned that my words and arguments have a profound effect,” Brown says.
As he enters his 21st year in practice, Singer finds civility on a down-turn. Mentors can combat the combination of lack of experience and fear that result in poor behaviour. “When I started out, it was easy for a young litigator to go to court every day” and receive guidance, formally and informally.
Why It’s Called A ‘Profession’
Singer advises reaching out, and points to such resources as the Law Society’s Practice Mentoring Initiative for lawyers and paralegals.
~ Clayton Ruby, CM, Criminal & Constitutional Lawyer
Senior licensees can put matters in context, and offer advice.
“New licensees are less able to know what to do” when opposing counsel appears to be unco-operative or uncivil, Ruby says. “Ask for an adjournment — with consent of opposing counsel, if they’re smart. Take that half hour and think about how to respond. Call someone more senior and they will advise you. That’s why it’s called a profession.”
Attacking the Messenger
Personal attacks are not only “out of bounds,” Brown cautions — they can backfire.
“If you attack the messenger, you’re showing that you don’t have a good case, because if you did, you would speak to the issues.” Referring to Paralegal Rule of Conduct 4.01, Brown notes that paralegals are to “raise fearlessly every issue, advance every argument, and ask every question” when advocating for a client. “That leaves room for a tough litigator to go too far.”
Bad Day, Or Warning Sign?
One issue that can’t be overlooked is that mental health and substance abuse affect behaviour. “Opposing counsel may be going through a divorce, having financial issues, addiction issues, or other problems they carry with them throughout the day,” Singer says.
“Some people are just difficult,” Singer acknowledges. “But if you have been dealing with the same licensee for years, and there has never been a problem, and suddenly they are not returning phone calls, not responding to requests, or if they have always been unfailingly polite and now they are not interested in civility — that is a sign that there is a problem.”
Whatever the cause, uncivil litigators ought to be viewed in context, Ruby says. “We’re Canadians. We tend to be polite and listen to the other side.”
Brown keeps the long-game in mind, his “eyes on the prize.”
“When the time comes for me to sit down and reflect on my life and my career, on how I carried myself,” Brown says, “I want to be able to say that I’m proud of my representation, and of my profession.”
- Contact the Practice Mentoring Initiative: firstname.lastname@example.org
- Paralegal Rules of Conduct: