Whether you've been recently licensed or practicing for years, chances are you have dealt with a Rambo lawyer. Named after John Rambo, the fictional character who resolves most conflicts through fights (even if unlawful), a Rambo lawyer engages in all manners of adversarial excess, including personal attacks on other lawyers, hostility, boorish and insulting behavior, rudeness and obstructionist conduct. For years, the rise of Rambo tactics in civil litigation has raised concerns. Judges have objected to the tactics, finding them to be unprofessional and unethical. Now, clients are realizing that engaging Rambo lawyers to "scorch the earth" can be quite expensive and unprofitable.
So, how should one handle a litigation matter involving a difficult opposing counsel? Here are eight tips to help you deal with a Rambo litigator.
1. Be prepared
A Rambo lawyer usually uses incivility to disguise his own insecurities or lack of proficiency in litigating a particular matter. Consequently, to deal with a difficult opposing counsel, you need to know the facts of your case and the controlling legal principles. Also, you must review the relevant documents and understand the testimony of all pertinent witnesses. That way, when you are confronted with a Rambo lawyer, you will not be tempted to mask your own insecurities by escalating the level of incivility.
2. Remain calm and stay focused
Many lawyers use Rambo tactics to distract, frustrate or anger their opposing counsel, who then fail to discover all relevant information. Hence, when facing a Rambo lawyer, you need to remain calm and stay focused. If opposing counsel is not cooperating in the production of documents or other discovery that you believe is relevant, find other ways to gather the information, such as from banks, government agencies, witnesses and other third-parties. Don’t get into unnecessary arguments. Instead, stay focused on what's important: uncovering all relevant information and witnesses.
3. Avoid responding with Rambo tactics
Naturally, when someone insults you, you are inclined to insult them back. Similarly, when opposing counsel yells at you, you feel compelled to do the same. However, responding with those tactics is not the best way to handle a Rambo lawyer. By returning the insult or getting into a shouting match, you are engaging in the same tactics as the Rambo lawyer and are likely to be sanctioned for such conduct.
4. Pick your battles carefully
In litigation, there are numerous tasks that everyone must complete to meet case management deadlines and client demands. Contrary to the mindset of a Rambo lawyer, not every extension request or deposition location needs to turn into a major battle. Pick your battles carefully and don’t turn every issue into a fight with opposing counsel.
5. Know the rules and your judge
In addition to the federal and state civil procedure rules, many courts and judges have rules, requirements, procedures and preferences that lawyers must follow, especially with regard to discovery and other pre-trial matters. It is important that you know these particular requirements so that you can tailor the presentation of your issues accordingly and not have your motions denied summarily. Knowing and following the rules will place you in a better position in the eyes of the court and will often defeat many of the Rambo litigator’s tactics.
6. Document all communications in writing
When dealing with a Rambo lawyer, you should document all communications in writing. That is not to say you should insult or attack opposing counsel in writing. Instead, you should confirm in writing your communications with opposing counsel, including any abusive or inappropriate language or conduct that the Rambo lawyer has displayed, and respectfully ask that she stop making such comments during your verbal conversations. In extreme cases in which the Rambo lawyer refuses to stop such inappropriate conduct, you may need to limit your communications with opposing counsel outside the courtroom to strictly written ones. In either case, documenting the Rambo lawyer’s tactics is important, so that if you need to seek the assistance of the court or others, you’ll have something more than your word of what transpired.
7. Involve the court and report conduct to the disciplinary committee
Eventually, you may need the judge to address certain Rambo litigation tactics. However, be judicious in filing motions with the court. Not every Rambo act calls for a motion to compel or sanction. Moreover, repeatedly filing motions can, in and of itself, constitute Rambo litigation tactics. In extreme cases, you may need to report the Rambo lawyer to your local disciplinary committee.
8. Don’t exaggerate
Whenever you present a dispute or issue to the judge or trier of fact, stay true to the facts and don’t exaggerate. To get the court or trier of fact to accept your version of events, you need to obtain its trust. Let the Rambo lawyer engage in the exaggeration and ad hominem attacks, and then expose his dishonesty while maintaining your professionalism.
No one likes dealing with Rambo lawyers, but unfortunately, it is often an inevitable fact of today’s civil litigation process. Keep these tips in mind the next time you deal with or are thinking about engaging a Rambo lawyer, and you will definitely come out ahead.