1. Prepare

There is no substitute for preparation. Create an early strategy for your case, stay on top of discovery, sift and sort through those stacks of emails, and know the facts better than anyone else in the case.  A prepared lawyer is a powerful lawyer, and preparation becomes evident to everyone in the room in important moments.

2. Know the law.

The law guides and protects parties AND lawyers, and it is not just the substantive law impacting the issues important to your client.  Laws of procedure govern what attorneys do and how they do it. The discovery rules are robust, and the discovery guidelines are the roadmap for how civil and professional attorneys are supposed to practice.  Use the rules as your guide for every response and communication with aggressive counsel, and hold them to the Rules.  When you find yourself in motions practice, incorporate your sterling emails and letters as exhibits and cite the applicable rules and guidelines in your motions.

3. Resist the urge to fight fire with fire.

A pit bull attorney loves nothing more than a good fight. That is the field of their choosing, don’t make it yours. Engaging in the combat gives your OC what they want, and fires them up.  The fight is their energy, but it is often draining and distracting for you and/or your client.  It is also a self-perpetuating cycle that the pit bull never wants to end.  Don’t feed the fire.

4. Choose your hills wisely.

‘Hot’ tip number three notwithstanding, identify the issues that are important to your client, and determine which, if any, are ‘hills to die on.’  When you’re not engaging in every skirmish, it preserves you for the challenges that matter, and sends a message to your counterpart that you are serious about the battles you do pick. Keep your powder dry for when you really need it.

5. Be steadfast and consistent.

Now that you’ve taken a position that matters to your client on an important issue, don’t waver in your approach.  Sure, everyone has to compromise at some point in a settlement discussion, but a negotiation is not fruitful unless your client receives value in exchange for their concessions.  Threats and general vitriol cannot carry the day.  You don’t have to engage in argument to hold your ground.  State your position, be firm in your approach, and be prepared with a strategy for how you will respond if your opposing counsel takes an unreasonable position. 

6. Use a neutral.

In this post-pandemic era, courts are overwhelmed with a crushing backlog of family law cases statewide, and many are now stepping up their efforts to force people to the settlement table, in some jurisdictions requiring two mediation sessions per case. Once you’ve sufficiently developed the issues and facts of your case, find an opportunity to participate in alternative dispute resolution with a neutral. A good mediator may neutralize overly aggressive counsel to an extent. If you have options, consider the position and personality of your mediator, perhaps a retired judge or seasoned practitioner who commands even a pit bull’s respect or attention.  A neutral will also be in a position to talk with the opposing party in a reasonable manner, and perhaps offer a neutral evaluation of the issues that the attorney may not be offering his client.  The timing of mediation is also important. Ideally, schedule when there is sufficient leverage to maximize your opponent’s motivation to settle.

7. Stay focused on your client’s goals.

Your objective is to serve your client, and that is easy for you and/or your client to lose sight of in the heat of battle.  Identify your client’s goals at the outset of your representation, and use them as a touchstone throughout your representation.  Often times, strategy and priorities can and should be recalibrated to be consistent with the end-goals.  This may help to diffuse conflicts that ultimately will not serve your client’s wants or needs.

8. Think like a pit bull.

It is important to note, real life pit bulls get a bad rap! They are friendly, playful, loyal, energetic, and courageous. So too, may be your counterpart when they are not on the attack. Yes, they are the proverbial hammer looking for a nail, but that doesn’t mean that an aggressive lawyer is unconcerned with doing a good job for their client.  Behind the bluster, combativeness, and general unpleasantness, what are they seeking to gain for their client?  Understanding the opposing party’s goals and motivations, and considering your opposing counsel’s substantive strategy (beyond yelling), may help you identify issues where you can offer something of real value to the other party.  Much of an aggressive litigator’s approach may be a function of their personality, so consider that dynamic as well.  Is there an opportunity for you to put them in a position to deliver value to their client, and pat themselves on the back, while also gaining something important to your client?  A needle threading operation, for sure, but worth considering. 

9. Pick up the phone.

Choose a relatively benign time (read: NOT three minutes after you’ve received a headache-inducing email from OC), and call your counterpart.  Be ready with a low-intensity issue or two ready to discuss, perhaps scheduling a mediation or deposition, or extending the discovery deadline.  Take the opportunity to exchange pleasantries, ask about the person’s personal interest or family if appropriate.  Look for an opportunity to have a constructive conversation about your case, but even if it does not present itself, personalizing the dynamic with counsel can be disarming, and set a better tone for future communications. 

10. Compartmentalize.

At the end of the day, the pit bull attorney is not likely to change its brindle, and all the strategies in the world can only go so far.  Remember that opposing counsel’s poor behavior reflects on them, not you.  After the pit bull has dashed off that nastygram, they are on to the next, and are not dwelling on you.  You may have a five-minute exchange with this person in ten-hour workday, don’t let that brief interaction be the story of your day.  There is a lot of good work to do out there, and many good people to help.  Focus on the positive, and what is in front of you!



[*] We have all heard reference made to ‘pit bull’ lawyers. Having been the proud owner of a beloved pit bull, it bears noting that this moniker is an insult to the pet who inspires it. Like many humans, the pit bull is often misunderstood.  If you are considering adopting, they make wonderful pets 🙂