How Should We Deal With Conflict?
By A pro se opponent continues to file nonsensical pleadings. An opposing counsel is obnoxious and rude in a deposition. A family law case is on a roller coaster of one crisis after another, created by your own client, the other side, or both.
As legal professionals, we are often called upon to deal with one sort of conflict or another. For those of us who make our living as litigators, all of our cases are “adversarial” in nature. But if we are honest, some of the players—whether parties or our colleagues at the bar—are easier to deal with than others. The question is, then, how do we handle these more contentious situations without allowing it to rob us of our peace of mind?
First, we need to remember that we were retained because a conflict of some sort already existed. In the case of individuals, organizations, or governmental entities, the dispute could be over a contract, a tort, a family law matter, or many other areas. In the criminal law context, the client may be accused of committing a crime and is facing prosecution by the state or the federal government. Thus, the issue is not that conflict itself is inherently bad or must be avoided at all costs. Rather, the existence of a conflict shows that there is a need for some change. The conflict is also an opportunity for us to use our legal education, skills and abilities to assist our clients.
At the beginning of a civil legal case, we typically file pleadings, send discovery, and perhaps take or defend depositions. In a criminal case, the DA’s office may have issued an indictment or shared discovery. However, there usually comes a point in each case when the attorneys for each party discuss the case less formally, perhaps during a motion hearing, a mediation or a plea negotiation.
When that time comes, the key to handling even the most difficult opposing counsel or parties is to listen. To be an active listener requires not only hearing the other side but also paying attention to the nuances and nonverbal signals of the speaker to understand the message.
How, then, do we react? While we cannot control our opponent’s language or behavior, we do have control over our own emotions and how we choose to respond. When our opponent does or says something particularly aggressive or something that we think has no basis in fact or law, the power of taking a breath and pausing for a moment will help us to respond more effectively than if we respond while agitated. In the end, it comes down to us. Do we have the skill and maturity to disagree, without being disagreeable?
In a mediation context, conflict is also lessened by not dwelling on past harms but focusing on the future. While we can and should set forth each element of past damages, taking ownership of the process allows the parties to work together to resolve a matter successfully. Finding a resolution in some instances takes creativity and hard work.
Sometimes, it’s the pro se opponents who really drive the conflict, either intentionally or because of a lack of understanding. One approach with pro se opponents is to have an up-front conversation with them. Advise them that we will advocate for our side and that they will likely disagree with our position. However, we can assure them that we work towards a mutually agreeable resolution. Otherwise, a judge or jury will have to determine the outcome. This approach may lead to more productive conversations and less hostility down the road.
But what happens if the case does not settle? We can still advance our clients’ interests effectively depending on how we advocate their position. This does not mean that we must needlessly concede or agree. However, a reasoned approach in front of a judge or jury is often far more effective than one that includes inflammatory language, personal attacks and exaggerations against our legal opponents.
It may help to think of a legal dispute as a tennis match. When two top athletes compete, they use every bit of their physical and mental power to gain even a slight advantage in the competition. However, there are still rules that each player must abide by, and they are expected to treat each other respectfully.
Is our handling of a legal case so much different than tennis? In our cases, there may be only one winner, but that does not mean that we can act unethically (break the rules) or disrespect an opponent in word or deed.
Remember, the conflict is not with the other attorney; the conflict is simply the present tennis game in the set. While we may be hitting the ball back and forth with all of our strength, and we may play very well at times, we will not win every time.
Finally, how should we react if we lose? A dose of humility about our legal acumen goes a long way when we inevitably swing and miss. After all, the legal community is relatively small, and we are likely to be paired up against this opponent again in the future. Perhaps looking at a legal conflict like a competitive sport with its emphasis on sportsmanship helps us to see our legal opponent as a fellow player and manage the conflict accordingly.
So, when that pro se opponent files the next pleading, why not pick up the phone instead of firing back a written response? When we see the obnoxious behavior of opposing counsel, we do not need to respond in kind. And when our cases seem to move from one crisis to another, we can do our best to be the voice of reason. In this way, we have a measure of control over the conflict, instead of letting it control us.