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As a new attorney, you will encounter a variety of difficult individuals on the opposing counsel. From aggressive psychopaths and lazy counselors to over-billers and rule-breakers, this team of Zinda Law Group attorneys has faced them all. From physical threats to elusive pains in the neck, new attorneys can find the answer on how to combat each courtroom character and set their case up for success. Overall, the experienced team has a tried and tested rule of thumb - stay calm, document everything and set strict deadlines.
The Effective Lawyer teaches ambitious trial lawyers how to grow their skills and create a prosperous law firm. Using lessons learned by accomplished attorneys from around the country, we discuss lessons learned through their trials and tribulations. Our discussions cover a vast range of topics sought out by attorneys looking for advice, from depositions to how to market your law firm.
The show is hosted by Jack Zinda, Founder and Senior Trial Lawyer at Zinda Law Group. In less than 15 years, Jack and his team have grown Zinda Law Group from 3 attorneys to over 30, spanning several states and handling a variety of personal injury cases from gas explosions to truck accidents.
Jack and his guests share their knowledge and skills that they’ve acquired through the process of building one of the most successful plaintiff’s law firms in the country.
In each show we cover a new topic that an ambitious attorney would want to better understand, while providing practical skills to improve their legal practice.
For more information, visit https://www.zdfirm.com/the-effective-lawyer
Welcome to the effective lawyer, a podcast for ambitious attorneys who want to improve their practice. My name is Jack Zinda, and I'll be your host.
according to the American bar association, there were 1.3 million attorneys as of may, 2008. And unfortunately not all of them are going to be easy to deal with. So today we're going to talk about how to deal with Rambo, that opposing counsel, that just seems to make every part of the process so difficult to deal with and more difficult than it needs to be.
Hopefully you'll find some of these tips, tactics, and techniques useful to your practice. But before we get into it, let me introduce our team. So we've got Joe Caputo here, Joe, you want to choose. Hi everyone. I'm Joe Caputo. I'm one of the partners here at Zenda law group and me and my team handle some of the severe and catastrophic cases in front.
And then we have Chrissy Hagan. Hi, I'm Chrissy Hagan. I'm an attorney with Zindel law group and I handle a wide range of personal injury cases, including auto trucking, wrongful death and premises cases. And in one of our senior attorneys, Neil Solomon, thanks. I'm Neil Solomon. I'm one of the senior attorneys and, uh, I handle a docket of, uh, severe and catastrophic cases, uh, here at law group.
And I of course am Jack Zenda, our time janitor part-time lawyer, a part-time dad. So let's talk about the different types of difficult opposing counsel. I made a list of these prior to this podcast, I came up with five different types. I've got the aggressive psychopath who we referring to is Rambo that someone who's just like so aggressive for no reason and wants to fight every battle, tooth and nail, and is difficult in depositions and mediations.
I've got the lazy lethargic opposing counsel who will not return a call. Won't show up to a hearing, refuses to schedule depositions. I've got the. Over biller, the person who just, this is their one case, and they're going to squeeze every piece of work out of it. It's going to send a 12 page letter when a, when a phone call would make do, and then the rule breaker, somebody who's just going to ignore the court rules, gonna ignore the rules of civil procedure.
And it's like a bull in a China shop. And I know I have dealt with every one of those types of attorneys, at least three times. And I'm sure you guys have as well. So why don't we talk about first Rambo or the aggressive psycho, uh, opposing counsel and maybe some experiences you all have had dealing with an attorney like that and how you handled that situation.
Neil, why don't we start with you? Yeah. So I think that, you know, I can think back to, to one scenario in particular, Pretty early in my career, going to handle a hearing and defense counsel said, Hey, why don't we go step off into this side, a witness room in the courthouse to see if we can't work it out had been nice so far we walk in the room and he just starts unloading just absolutely.
Yelling at me telling me my client is a terrible person. Uh, he's going to destroy me. I literally couldn't believe I got out of a movie. I couldn't believe what was going on. And so I kind of just sat there and smiled at him. And he just says, wipe that smirk off your face and some, a little more colorful.
I said, look, you're not going to yell at me. You're not going to change my opinion. Let's just go before the judge we're done here and we walked out and then sure enough, five minutes later, we're sitting there waiting for the judge. Can I use, let's go talk again really quick. And then he starts like a normal reasonable person.
I think he just wanted to see if he can get a rise out of me. And so, uh, I think the most important thing in, in tip that I would have is just keep your. In my opinion. I think the best thing to do is to not rise to their level because it just escalates the situation. Uh, I leave that to Joe Caputo, but personally I think it's best to just let them get the rant off.
And then usually cooler has a prevailing on end getting what you need to get done. Well, Joe is our resident Rambo, lawyer, you know, how would you respond to Neils Neils tactics? I think Neil is exactly right. I know Chrissy. You've probably been in a couple of depositions with me where, where we've had a couple of those Rambo defense attorneys.
And so you may be able to give a concrete example, but most importantly, I, I think that, especially as a young attorney, There's a solution to all these different types of attorneys, whether it's the lazy attorney, the over biller, the rule breaker, the aggressive one. There are tips to get around all of these roadblocks, but with the aggressive ones, I remember there was a case really catastrophic injuries.
Highly contested liability, highly contested coverage issues. And I start asking one of the defendants in the deposition about his criminal record and one of the attorneys, or a couple of attorneys in this deposition did not like the line of questioning about the criminal conduct in this person's past.
And told me on the record that if I continued that he was going to knock my block off. And one way to deal with that is to be just as unreasonable, right. Or to freeze up and not know how to handle it or move on, but the best way to do it. And I learned this from an, I think the first minute I practiced, no, the rules, video, every deposition you have, and those are your safety nets.
Right? So. Knowing how to create a record, knowing what the rules are, knowing how I can suspend a deposition or how I can create a record to my advantage in utilizing the fact that I also have a video to use during the step position allowed me to turn what I think could have been. Uh, pretty contentious fist throat and the deposition type resolution to a resolution where, when I see this attorney on the case, he calls me and we ended up chatting for 30 minutes about our families because we've gotten over our differences.
He handled it the right way and didn't meet aggression and yelling with the aggression and yelling. Well, I can absolutely relate to how Neil responds to aggressive attorneys. Cause it's the same thing I do. I ended up just laughing because you know, what they want is to get that rise out of you and they want you to get aggressive back or be intimidated, but it just comes across as comical because you know that it's all a show, especially if.
What Joe said, and you know, the rules inside and out, then you can't be intimidated. I remember my first expert depo that I took. I had a couple of questions. So take some breaks during it, call Joe, ask him some questions. And I said, you know, Hey, there's a bunch of documents. The doctor was supposed to bring that she didn't.
And I want to still be able to ask her about those. And he said, well, you know, suspend the Depot. So I go back in, I tell the other attorney that I'm suspending the Depot and he freaks out and says, we're going to sit here until the cows come home, but you're not suspending this stuff. Oh. And I said, well, yes, I am.
And I started laughing and he sat there with his arms crossed and he's like, no, you're not until finally I was like, I know what I'm allowed to do. I'm suspending it and you obviously, he's just going to give in, but he wanted to see what I would do and how I would take that and want to force me into continuing with the deposition when I knew the rules and knew what we could and couldn't do in that situation.
I also think one thing that you can do as well as just plan for that, you know, it's a common technique, especially if you're a young attorney, you know, probably my first. 10 years of practice. Every attorney I went up against was at least 10 years older than me. And so they were all trying to push me around, intimidate me.
And after a while it kinda got comical because they all tried the same tricks at first. And then you show them, you know, the law, then they backed down, uh, and also always envisioned them as you know, kind of a child in a, in a grocery store, throwing up. The parent, if the parent throws a fit with the child, you both look foolish.
And when you watch the video clips of opposing counsel acting so aggressively, you realize how, how bad they look. And there's nothing better than playing in a motion to compel hearing footage of a defense counsel, losing their cool, flat, threatening to, uh, you know, take your block off. Hopefully they don't do it, you know, but, uh, if they did, it would probably be good for the case.
So Joe, if you want to take one for the team, sometime I'm all about. Hopefully we have worker's compensation that pays her time off. Well, another one that I think can be tough is the lazy, uh, opposing counsel, you know, because our cases. We're the plaintiffs. And sometimes defense counsel just ignores us and refuses to engage.
Sometimes it's intentional and sometimes frankly, they're just overworked. They have too many files and they're not able to respond. So what tips do you guys have for dealing with the lazy defense counsel that can make our jobs a really. Yeah. So I'll jump in. I think that one of the big things in this area, and it's probably an answer to a lot of the questions with, with any council through acting, you know, inappropriate away, you don't want them to, um, is really just setting a record, right?
You always want to come in with clean hands. You don't want to show up before. Looking like you're the one doing something inappropriate. And so if they're just not responding, they're not doing anything. Then you send a letter, follow up with a phone call, send another letter saying, Hey, I tried to call you.
You try one more time and then you just move forward with strict deadlines. Uh, and so I think that's the most important thing. Setting a deadline and then making sure you're abiding by them is the only way that you're going to get that person across. And sometimes it's, it's really important. You can even call them.
Find out what's going on and get to the bottom of the issue. Is it, they just don't care. Is it because they have too many files? Can you reach directly out to an adjuster? Is there a different attorney at the firm that can cover a deposition so we can get moving? That's always, hopefully you can get them on the phone, but always go back to setting deadlines and then sticking to them and showing that you bend over backwards to try to accommodate them.
They just refuse to. One and I find one of the mistakes I see attorneys make a lot is just leaving voicemails and just calling over and over again. Cause this typically comes up with trying to get a depo set or trying to get a trial date or something to move the case forward that you need agreement on.
And you know, our policy at the firm is letter call letter call set. You know, you send a professional letter, you make a professional phone call. You repeat that twice. And then we set. And we confer when we have our motion to compel hearing. And a lot of times we'll see attorneys get into this bad feedback loop, where they leave 15 messages with four opposing counsel and it accomplishes nothing.
And now you're six months down the road and you haven't had your first deposition in the case. So I think it's important. Like you said, Neil, to, to create a record. Joe, what are your thoughts? These cases were on the train tracks and this train is going and that's, our job is to push these cases along.
And so we want to do exactly what both you and Neil said, which is creating some written records with deadlines. I think it's really important to set deadlines in these requests as you're trying to set things up. And that way, as you're moving the train down the tracks, you have clean. That's going in front of the judge and saying, you know, I I've attempted in good faith this way, this way, and this way to try and agree on a date to get this deposition.
And I can't get a response back, you know, we're, we're all dealing with this, at least on the plaintiff's side with COVID-19 right. This is a great opportunity for a lot of our cases to stagnate and Chrissy. And I just got on a call last week with counsel in a case where a pedestrian was struck in a crosswalk by a bus go in about 30 miles an hour, and we have some expert disclosures due in the fall.
And these attorneys just want to delay all depositions for about 90 days and that doesn't help our case and it doesn't help our client. And although there are some depositions we want to take in person on that call, if they didn't want to agree to certain depositions, we wanted to get a letter out, confirming their position, and we want to get the court.
So at least let the court know ahead of time. Here's the defendant's position on this. We have some deadlines coming up and work. We're going to have problems with those deadlines, unless someone changes their tune moving forward and get some court instruction and feedback, as opposed to letting the defense council kind of dictate the pace of the case.
Yeah, I agree. I think it's important to also keep, keep in mind while you're pushing the case it's for your client. And if you do plaintiff's work, your client is not going to receive anything until the case is resolved either through a trial or settlements. You've got to keep that train moving.
Zynga law group is a plaintiff's personal injury law firm made up of over 30 lawyers that handle catastrophic personal injury and wrongful death cases throughout the United States. We regularly co-counsel and joint venture with firms across the country. Over the last several years, we have paid millions of dollars in joint venture co-counsel fees to the law firms we work with.
If you are a law firm or attorney and have a catastrophic personal injury or wrongful death case, you would like to joint venture or work within the law group. Please reach out to us at 800-863-5312 or email us at info@zdfirm.com. And we can set up a time to discuss your case.
One of the other types of difficult with defense attorneys, we have been dealing with more and more of on especially larger cases are the ones that want to bill the heck out of the file. Everything takes nine, 10 times as long, six hour depositions and every single Depot, tons of discovery. So, how do you guys deal with that attorney that just loves to fight once to go to that motion to compel.
Hearing wants to go to seven of them and wants to just build the heck out of the foul. Chrissy. Do you have any, any tips for that? Yeah, I think I, again, it's just important to document the file and. Just keep track of all the ridiculous things that they're asking for everything that's already been provided and also make it a point not to fall into their trap and play their same games.
You know, if they want to send out a hundred letters a day, it doesn't mean you need to reply with a hundred letters. Um, it only creates unnecessary work on your part instead, you know, maybe call them up. Find out why, you know, they keep asking for the same thing that's already provided. And, um, why you think it's unnecessary to get the court involved and then just follow up with that in writing.
So the court knows that you tried to work it out nicely and there'll be frustrated when they find out the defense counsel wasn't willing to, and it's a waste of the court's time to become involved in something that's really just kind of. Well, Neil used to be one of those attorneys back in the day on, uh, on your defense days.
So how, how should we deal with someone, someone like that. So I think this goes back to, uh, establishing that relationship with defense counsel and that you can have a Frank talk of, Hey, what do we need to get done to get this prepared for trial, uh, and trying to figure out where they are and where their incentives lie.
And so. Um, I think the big thing is, is figuring out what you want to get done, especially on the plaintiff's side that we're coming from and get those things set, uh, and in a position to, like you said, either resolve or get it ready for trial. And so the big thing is trying to lump together events if possible, um, to try to move things along, you know, a big thing I'm a fan of is when talking with defense counsel and trying to fix.
Um, what it is that they're trying to get. And a lot of the fights that they're wanting to have are unnecessary. There might be a worker and we don't have to go have that year ago, go down to the courthouse. And so I think it's just important to figure out what it is they're looking for. And a lot of times it's, you know what I'm actually okay with that.
Let's get that record and get it to you. So we don't have to go spend another month or two delaying the case because. I think on our side in particular, we're trying, trying to remember the, I always like to say we have the truth, right. And it's going to come out. And so at the end of the day, most of the time, okay.
With a lot of it going to the defense, uh, and we'll deal with it as we have to, but just trying to make sure we're moving things along in the case. I think when you talk about all of these different types of difficult defense attorneys, most of them are really recognizable, right? I think the exception is the over biller.
And one struggle I had early on in my career was just simply identifying when that was happening, you know, for the life of me, I couldn't figure out. Why this defense attorney was making an issue of this, that, and the other, or why they needed these three depositions that had nothing to do with liability and damages.
And so once you identify that problem, I think my solution to that problem is. Figure out who wouldn't want it to happen other than just us. And in my experience, that person that doesn't want the overbilling to happen is either the defendant or the insurance adjuster, that's paying the bill. And so my strategy is typically how can I get the message to that decision maker?
That's paying. Defense attorney to build the hell out of the file in a way that lets the know that this is happening and maybe cuts it off at. That is a really great idea. And that's something we've been talking more and more about. The firm is, you know, sending letters and knowing who the audience is.
You may send a letter to defense counsel, but your true audience is the adjuster or the company that is paying the bill. So they read it and see, oh, okay, this is what's going on. And know you can communicate though. I think that's a great, great tactic to keep in mind. The other thing that I think you've got to do is.
Look past the attorney and don't get into every single fight, like, know why you're having the battle, right. You're trying to win the war and you don't have to fight every battle. Sometimes it's easier just to concede a point and find you want to take this step. Oh, you want this irrelevant record take it.
It doesn't hurt our case. That also shows strength that you're not afraid of that issue. If you're just putting it out there and letting defense counsel. One question that I get a lot from attorneys is when do you get the judge involved with disputes? Cause I think that can be a double-edged sword. You know, sometimes you need to, to keep defense counsel in line and other times the judge can get annoyed and blame the person bringing it to their attention.
So do you guys have rules that you like to fall on when you want to get judicial involvement in say discovery dispute and when you want to just, you know, try to hash it out with opposing. I mean, I think generally speaking, I would always try to hash it out with opposing counsel first. Uh, and then from there is once you're not getting what you need and you've set those clear deadlines.
That's when you want to go to the judge, uh, I, they. Unbelievably important to come in with clean hands. Like I said to where you to do everything possible to show that you're not showing up there for some unnecessary hearing. Uh, and sometimes you do just have a difference of opinion of what's relevant discovery or, uh, what you're allowed to talk about in a deposition or something else in the case.
But you just want to make sure that you made every effort possible before you get. For me getting the court involved as always a last resort, because I think most things you can work out directly with opposing counsel or at least you should be able to. And I've also noticed judges, including specifically in more and more case management orders and pretrial orders that I see the importance of conferring before filing something like that and that they spell out in there.
You know, conferring is not sending one email. It requires either. Uh, phone conversation or an in-person conversation. And so you look really silly if you're one of the defense attorneys who wants to file a million motions to compel. And in the conferral statement, they put, you know, sent an email and plaintiff's counsel didn't respond.
The judge is not going to like that. And they're going to see it as a waste of time. Not only because you didn't follow what they require, but also that it's most likely something that you could have worked out. If you had just given the other side of. And to that point to jump back in the, the big thing with, when you go, let's say you go get the hearing.
There's no guarantee you wait or get what you want anyways. So to actually have control over it, like any settlement in a case, I think it can be really valuable to know you're going to be getting something and you're at least okay with the outcome is different than showing it to the court. And you may end up worse off than had you come to an agreement in the first.
Check it, as you know, I have two young kids and now that I'm working from home in my office, after every long day I go downstairs, I see the two kiddos and the first two things I hear. Are my daughter took my son snack and then my son hit my daughter and they're just tattletale in. And it's been a long day.
It's six 30. I've been trapped in my house and I don't want to deal with it. And I'm annoyed. And I feel like 98% of the time, that's the judge in these situations where you're having a dispute, especially in like, you know, a deposition or something. It always depends. If you have a relationship with the judge, maybe that changes it.
If there's been agregious conduct that the court is already aware of, that may change my mind as well, but I think you're better off like Chrissy and Neil said more often than not. Moving past it, trying to deal with it, uh, with the opposing counsel or putting it on the shelf and addressing it later. And you can tackle a bunch of issues all at once down the line, as you get closer to trial or at the end of discovery.
Yeah. That, that story reminded me. My brother and I, so my brother is a patent litigator and he is two and a half years younger than me. And we used to just have these epic battles when we were kids. I mean, we're best friends now, but we did not get along when we were younger. And I was great about pushing his button.
So I'm annoying him and making them angry and. He would lose his temper and just start flipping out. And my mom would come in and I'd be like, I don't know what's with this guy. He's just out of control. And that kind of fiber reminds me of that because the defense counsel has been doing all of these things for months and months and months.
And the judge doesn't know that the judge has tons of stuff to worry about. And so you come in, you're all fired up, your honor. You won't believe what they've done. And the defense counsel is sitting back going, your honor. Why, why is this person so upset as you can see, I've been dealing with a crazy person for months.
I don't even know why we're here. Here's the file they wanted all along. And so knowing that and making sure if you're going to go it's for something important, uh, and you're clear and precise, and please do not draft a 300 page brief because the judge is not going to read it and is going to be very annoyed.
And you're probably going to lose. So I would say, make sure it matters, make sure you have clean hands and then make sure you have a good record and you've documented it. Well. Before going and seeing the judge. Well, not to bash defense counsel this whole time. Let's, let's flip for a moment to plaintiff's lawyers and just talk about what are some of the things that you guys see that plaintiff's lawyers.
Doing cases that maybe is unreasonable or actually hurts their case more than helps it. What are some of the things that you've seen, maybe colleagues that we have without raising names that you think is a mistake on how they approach a case or dealing with opposing. I think that not having a concrete plan and a purpose for every step of the case is a mistake.
I don't know of any strategy session I've been in with any attorney where we say, okay, well, why do we want to take that step? And the answer is, well, let's just wing it and we'll try to figure it. And I think that's why we always start with the jury charge in these cases is we want to know what the burden is, what the elements are, and then talk about how we're going to meet our burden and what evidence we need to get an unmissable format to get there.
And so I, I think not having that plan right away and making sure that you're consulting it throughout litigation to make sure that you're on track. Is going to prevent you from making a lot of mistakes, really close to expert deadlines, discovery, deadlines, and MSJ deadlines that I see a lot of my colleagues making.
Yeah. I think that's a great point. Now. What do you think? Yeah. And in my defense days, uh, All different types of plaintiff attorneys that are there. And I think a couple of different things that show up is that you'll, some people can become, I don't know if jaded is the right term, but they just don't treat their cases.
Like they're a big case. And so, and I think that comes through too, whether it be the adjuster or the defense counsel. And I think just from the very jump, um, you can kind of tell that they are. Looking at it, whether it be on some sort of, uh, just a multiplier or some system to try to get the case resolved, rather than they're looking at the case from a, Hey, I'm looking to go try this case and I'm going to prepare from the jump.
And so making sure that they're looking at each individual case with the best possible outcome in mind for the client, rather than kind of getting into the system of it's just another case. And what's the next step and moving forward without a real purpose from. I would say, I'm not setting the case up for success.
And assuming that the other side is going to miss something. So for example, you know, drafting a demand and highlighting why your client needs this invasive surgery. When you know, there's a small spot in the record that references, you know, a prior back injury a month before, because you're not doing the best that you could be doing in preparing the entire picture for the other side.
You know, talking about why it was a completely different injury or they had different treatment or they're asymptomatic. And just assuming the other side, isn't going to notice because you're also delaying the case because once it gets to the other side, they're of course going to be asking for those prior records and it's something you could have done a better job preparing for up.
Yeah, I think that's, that's a great point. And also think a lot of times plaintiff's lawyers are not as empathetic as they could be to defense counsel and adjusters. We it's easy to get fired up and worked up about our cases, but we need to remember that the other side are people as well. And if you put yourself in their shoes, doesn't mean we're always sympathetic to the place that they're in, but empathetic.
Understanding where an adjuster's coming from or defense counsel. It allows us to get a better outcome in the case. And I can't tell you how many cases that we have gotten resolved for really great outcomes, better than what we thought. And I think a lot of it had to do with a good relationship with the defense counsel, who a lot of my colleagues could not stand, but I was able to build a relationship and that led us to being able to get a better outcome for our clients.
Well, I think we're almost about out of time, but before we go, is there any last tip that you'd give to, uh, a young trial lawyer on how to deal with either difficult defense councils or difficult situations? I think the last thing that I would end on is that try to get a phone call or in-person meeting with defense counsel.
And I think everyone usually. Uh, is a lot easier to deal with. And a lot of 'em bridges can be mended that way. Versus if you just started going back and forth via email or via letter, everyone just starts hyping up their responses and rhetoric more and more. And most of the time, a quick phone call. Hey, what did I do to piss you off?
Usually really calms everybody down and everyone is able to work it out pretty quickly. I agree. My motto's always been, you can catch more flies with honey. I think it's just better to be nice. Cause it's hard to be mean or aggressive towards someone who's being nice to you. And kind of like what Neil said, you know, a lot of people have a concern about.
Putting things in writing and wanting to put everything in writing. And that's fine, but you can still give the other side a call first and then memorialize what you agreed to in writing. But it's, it is a lot more beneficial, I think, than going back and forth, rapid fire emailing, which can get misconstrued as well.
I would tell you don't be a keyboard warrior. Interpersonal communication is going to be important. Don't do anything underhanded and fight like Cal when you're in that hearing, when you're in that trial, when you're in that deposition and then at lunch, or at the end of the day, go socialize with your colleagues and the people on the other side and keep building that relationship.
And you'd be surprised how many times. We've gotten information divulged about either defendants or the insurance company's position, just because we've built that relationship. And the one note I would leave everyone with is always be honest and ethical. You know, your reputation travels really fast and no matter.
Uh, how good the case is. It's not worth your reputation to do anything that's either unethical or I think just not honest on a case doesn't mean we divulge everything that is going to hurt our client, but we don't lie to opposing counsel. I think that can cost you big time on not only that case, but future cases.
Last thing before we go, we always like to do a book recommendation. My recommendation today is Paul sculptors book on advanced deposition stress. I know that's not directly on point for dealing with difficult defense counsel, but I just think it's an incredible book. There's a great section on dealing with difficult defense attorneys in depositions.
And if you're going to be a great litigator, I highly advise you to read that book. You can get it on trial guides. Well guys, thank you so much for being here today. I really appreciate it. And we'll talk about. You bet.
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