I Made Opposing Counsel Cry

Q I hesitate to write but I’ve received mixed responses from those around me. I am a third-year associate at a mid-size firm in Ohio, doing litigation. I don’t often get substantive work other than pretrial research memos, but on a smaller case (apparently for an “acquaintance of an acquaintance” of a partner) I was assigned the bulk of the duties, including pretrial discovery and appearances. I was also being mentored, something the firm does with new associates.

Anyway, I’ve had two appearances in the case and a lot of discovery; i.e., discovery the partner said we were using to “bury the case and its counsel.” Opposing counsel is a relatively young mid-career plaintiff’s lawyer. He’s been fine in the case but is obviously overwhelmed, by our discovery and, as he told me at our first appearance, life in general. Specifically, during small talk while we waited for court, he said he’s barely sleeping, has a new kid at home, and a partner who works second shift as a nurse. He seemed frazzled but otherwise a genuinely nice guy and, when I casually relayed my convo with him to the partner, the partner said we should take advantage of those weaknesses and “drive it home.” I thought this was for the benefit of the client, who was there with us (for a motion to compel!), but later at the office he told me to draft up yet another set of request for production of documents and to schedule four depositions.

I dutifully followed directions. As predicted, opposing counsel subsequently asked for extensions of time to respond and to delay a couple of depositions on account of his schedule and some daycare issues, to which I was told to say no. I was also told to offer no explanation other than the client wants the case to move forward. Ultimately, the court ordered us to meet—actually physically meet. The judge also said in no uncertain terms that we were to work out our discovery issues.

Prior to our court-ordered meeting, the partner informed me not to budge an inch on deadlines and to make opposing counsel seek additional help from the judge. If needed, however, I was authorized to offer a one week extension. At the meeting, I again followed directions, remained stone-cold and directed our response as instructed, though I immediately offered a one week extension and no more.

Unexpectedly, opposing counsel broke down. He sobbed. He said he could not take it anymore. That we were unreasonable, that the practice of law was a professional killing field, that civility and normalcy and professionalism was the “unfulfilled promise of becoming a lawyer” (his actual words, as I took notes). He also mentioned his kid in kindergarten and one in day care, covered his face, and looked down as tears came through his fingers and dropped to his lap. I was stunned.

I’m sure you and others will think of me as weak, but I actually felt sorry for him. He was genuinely, truly exasperated and at the end of a dark road, partially of my causing. I felt bad. I felt guilty. I was told to win and to bury him and his case and I was executing those orders. So what I did next surprised me. I apologized. I came clean. I said I was under immense pressure myself as a new associate and disagreed at times with our firm’s approach to the case. I actually put my hand on his shoulder and asked a secretary to bring us some coffee, as some small gesture of offering comfort and support.

He recovered, we talked a bit more, and we worked out a decent arrangement for discovery, giving him three more weeks for documents, rescheduling two depositions and indefinitely holding off on some other pretrial things. Needless to say, the partner was furious when I told him, said I’d gone against his orders, that I had been fooled by a “crybaby,” and that my days at the firm and as a lawyer were likely numbered, blah blah. Honestly, I almost shrugged and said whatevs because I was so disgusted by the whole thing that I thought, maybe I’m not cut out for this anyway.

But, now after a few weeks and the ultimate realization that I need this job, all I can think about is this: did I do the right thing? That is, should I have sucked it up as a lawyer or should I have stepped up as a fellow human being?

A Both. Do both. That’s the simple answer and it’s not terribly hard so long as you hold on to your own moral and and ethical compass, which seems to be pointing in the right direction for you, at least currently.

But a few things, and let’s get the boring and basic stuff out of the way first. A lawyer is supposed to do what the client wants to do, or at least do what is in the client’s best interest and express wishes. Obviously, unless the client wants you to call her every single time you are working out the crushingly boring details of discovery, there’s some leeway to make things easier, for you and for opposing counsel. That is, it’s OK to do the whole discovery dance and compromise with opposing counsel so long as, ultimately, you preserve the client’s best interests (though it’s unclear in your case if the client—not the partner—specifically directed you to move the case forward without any exceptions). And, though it is ethically fine to be a hardass toward opposing counsel, as you were, it frequently comes back to bite you later, maybe even on the same case. Be flexible if opposing counsel is, in fact, a genuine human being also willing to compromise.

Second, you blew it when you told opposing counsel you disagreed with the firm’s approach. Totally unnecessary. It put your law firm—the fine folks who help pay off your student loans—in a bad light without having to do so. You would have been better off stepping up, assuming authority for whatever you had to offer, and leaving it at that, taking your licks from the partner later for offering up more than he gave you. You blamed it on the firm. Deflect the blame and take it on yourself.

Finally, as to the apology and the small gesture of comfort you provided to counsel, that was a class act. But, you are right—a lot of lawyers will think you were weak and would at this point be yukking it up with their “bros” about the guy who cried. Screw them. It was your call, your moment, and you did what you felt was the right thing. Plenty enough.

PS: Though he certainly has his fans, I’ve always despised the Cliche, the type of partner you describe.