This and That by Dennis Wade

Obstreperous is an adjective, meaning “noisy and difficult to control.”  Some key synonyms are disorderly, undisciplined and disruptive.

Defense counsel and claim professionals confront obstreperous adversaries every day.  So what is the best way to deal with uncivil conduct in litigated matters?  I can say for sure responding in kind only makes matters worse and lessens your chances of achieving your goals.  Worse yet, it risks creating a “record” that may prove embarrassing when your case is later judged by a jurist.  Virtually every legal publication, in every other issue, contains an essay stressing the importance of “Civility in the Practice of Law” – – and most judges take civility seriously.

But responding civilly to an obstreperous adversary is easier said than done.  But my general rule is this: Disarm with Charm.

The other day, for example, while attempting to conduct an Examination Under Oath – – and before my first question – – the policyholder’s attorney felt compelled to make a speech on the record, explaining what he viewed as the purpose of the proceeding.  I listened quietly to his diatribe which I viewed as wholly improper.  When he was finished, I began my questioning with a simple, “You stole my thunder.”  I then began to go through the preliminaries with the policyholder, giving credit to his attorney if he had rightly characterized the nature of the proceeding.  That simple beginning lowered the temperature in the room and allowed me to develop facts relevant and necessary to an ultimate coverage determination.

Likewise, at depositions, I like to think that all of my questions are proper (i.e., not compound, not confusing and the like).  But often the obstreperous attorney asserts ill-founded objections.  Rather than argue propriety with an adversary looking for a fight, I often say, “You’re right that question came out badly, let me re-frame it.”  By acknowledging potential merit in the objection, the adversary is thus disarmed and invariably the re-framed question is allowed – – and you get the information you want.

Disarming with charm is not akin to weakness.  Rather it calls to mind Napoleon who purportedly said that in order to rule, “You must put an iron hand in a velvet glove.”  It has since become a shorthand phrase for a person who appears civil but is determined, focused and has a hard fist of iron within.

And that’s it for this This and That.  If you have any strategies for dealing with the obstreperous adversary, please call or email Dennis.