Federal judges and attorneys share strategies for handling uncivil opposing counsel

SAN FRANCISCO - Dealing with jerks is not easy for litigators, and a panel of federal judges and attorneys gave practical advice for how best to address uncivil behavior by opposing counsel during a panel discussion at Northern District of California chapter of Federal Bar Association.

Women, minority and young attorneys bear the brunt of harassment and bullying, panelists agreed, but they said during the Thursday evening conversation at the San Francisco federal courthouse said lawyers need to be careful in how they handle it.

U.S. District Judge Rita F. Lin, a former Morrison & Foerster LLP partner who subsequently worked as a federal prosecutor before being appointed as a state and federal judge, said she learned much during her judicial training she wished she had known as a young associate.

"The reality is that it is hard for people who are low on the totem pole to speak up in the moment," she said. "People shouldn't feel bad about that."

But Lin strongly recommended that lawyers document bad behavior and send a confirming letter to opposing counsel. "I remember doing this early in my career. The response was, 'That's not how it happened.' But they never did it again."

"The threat is that you might take it to the judge," Lin said.

"It's super important to have it documented," she advised lawyers. "Make it pithy and short and clear-cut," and make it clear what they are asking a judge to do about it, such as an admonishment or more time for a deposition due to the delays caused by opposing counsel's behavior.

"From a judge's perspective, there's a reticence to getting involved with this stuff" for fear of getting involved in constant monitoring of lawyer conduct, she added.

Paul S. Grewal, the chief legal officer of Coinbase Inc. and a former federal magistrate judge in San Jose, said "it's so refreshing to hear that from a sitting judge. "Nine times out of 10, the judge is thinking, 'Don't make this my problem.'"

"The practical reality is jumping to 10 on the volume dial does undermine your credibility," he told lawyers, suggesting they avoid seeking sanctions unless the behavior is repeated and cannot be resolved any other way.

Grewal suggested that judges issue orders to avoid acrimony and unprofessional behavior during depositions and other pretrial matters.

"One well-crafted order or opinion carries a ton of weight," he said.

Emily A. Reitmeier Haffner, a Palo Alto partner with Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates, recalled an opposing counsel who would send "nastygrams" each morning and another who was openly hostile in court.

"I was not taking the bait at all, and he stopped," she said.

Senior U.S. District Judge Susan Y. Illston of San Francisco, who moderated the event, advised lawyers not to lose their temper regardless of the provocation.

"One thing you should not do is get mad," she said. "Then you'll be saying stupid things. ... If you get mad during the deposition and raise the temperature, that will destroy your credibility."

When things get heated during depositions or court hearings, Lin recommended taking breaks to allow everyone to cool off.

Grewal said clients play a key role, and in his job hiring dozens of law firms at Coinbase, said it is important to emphasize to outside counsel they are representing the company in their communications with opposing counsel.

"In my case, I think I have been very clear," he said. If he gets wind of a problem, "you may have lost my business."