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My client finally got deposed — and then some. I thought I had explained the deposition process well: pointed out what a deposition was, how it worked, who would be there, to tell the truth, not to answer questions that she didn’t understand, what objections I could make, etc. Well, I left out a little something that my client promptly pointed out after her deposition. Client: You didn’t tell me that the opposing lawyer was the devil incarnate. Me: Oh, he was a little rough on you, but, honestly, it was his deposition, and he gets a little leeway in asking his questions. Client: A little leeway! He was a snotty, despicable spawn of Satan. And you just sat there. He was contentious and ugly to you as well. I don’t understand why you let him get away with the questions he asked and the way he asked them. Why didn’t you do something? Me: In my business, you get accustomed to these cases of demonic possession. He was just trying to shake you up. It’s all a game. You’re taking this way too personally. He was ugly, but the court reporter’s transcript shows only the questions and not how he asked them, so a judge will do absolutely nada about this. You’ve already seen demon boy’s frivolous motions for sanctions against you. He’s just trying to get you off balance. Ignore him, and you’ll feel better. Client: Ignore him? Is that all the advice that you have? What can we do about him? Won’t the judge do something? What about the State Bar of Texas? The FBI? He’s a monster, and you are acting like he’s a minor nuisance. This is my case, and I don’t appreciate his behavior one bit. What are you going to do about it? Me: Hey, his client’s deposition is coming up next week. I’ll just be twice as ugly to him and his client then. How about that? How do we explain the antics of opposing counsel to our clients? Sure, most lawyers are reasonably professional and act like they have some manners. As for some other lawyers I’ve encountered, if you told me that they were conjured up from a pentagram drawn on a floor surrounded by candles and animal sacrifices, I probably couldn’t muster up a plausible alternative explanation for their presence on earth. Like every lawyer of any tenure whatsoever, I have faced off with opposing counsel who severely tried my patience — and my patience used to be considerable. The important phrase in the preceding sentence is “used to be.” NO ICE CREAM SOCIAL Any lawyer worth his or her salt can tell tales of opposing counsel who thought that the legal profession was his or her personal vehicle for reliving and avenging his or her childhood wrongs and slights. It is a lot like what social workers call the “cycle of child abuse.” Those who were abused (or who think they were abused) feel a personal privilege to abuse others. Naturally, it doesn’t help matters that a lot of hyper-glandular people are attracted to the legal profession because it looks like the perfect job for bullying other people. Plus, it pays well. Of course, the apologists for this sort of bad lawyering (mostly like-minded and acting lawyers) like to argue that, hey, the legal profession ain’t no ice cream social. They also argue that all that I am carping about is what is known as “zealous advocacy” — which is next to godliness in the pantheon of ethical requirements. Of course, there is no “ethical requirement” that justifies what some lawyers do in terms of name-calling, rules-flouting and frivolous motion-filing. It is simply a conceit that these lawyers rely on to transform their vices into supposed virtues. Nonetheless, when and how do we explain our opposing counsel to our clients? First, we lawyers have to have some objective understanding of our adversaries to decide whether some extended explanation to our clients is necessary. It is all too easy to characterize every opposing counsel as “Satan’s in-house counsel,” when the reality is that most don’t even come close. We can easily let our pique at how we were treated in the last case influence how we describe the other lawyer now. Second, we have to have some rudimentary understanding of ourselves — after all, contentious lawyers do a lot of what the shrink community calls “projection.” That is, they “project” their own wretched characteristics onto their opponents to justify the next bad thing they plan to do (e.g., “The only reason I acted like a creep is because you have to fight fire with fire, and my opponent is a worse creep than I am.”) Or maybe that’s called “rationalization.” Anyway, when I was a kid back in West Texas, we spoke of little else but “projection” and “rationalization,” so you have to trust me on this. Third, we need to be accurate and constrained in explaining opposing counsel to our battle-weary clients. Clients need to understand that the nature of the opposing attorney is a factor — like any other factor — in deciding whether to go to trial or settle or whatever. It is usually not the most important factor, but along with the facts, the law, the venue and the risks, we need to tell our clients the straight skinny on whether opposing counsel is clean or dirty, if we know. By “constrained,” I mean that we shouldn’t turn our accurate description of the other lawyer into an epic account of the depths of perfidy and corruption in the human soul. If we lawyers do that, it means that we have ranted on too much and risk scaring the small children in the audience. Besides, a lawyer who repeatedly rants about opposing counsel needs to take a look in the mirror. James M. McCormack is a partner in the Austin firm of Tomblin, Carnes McCormack. He is the former general counsel and chief disciplinary counsel of the State Bar of Texas and advises firms on legal ethics and legal malpractice issues.

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