Tips For Young Lawyers

Identifying and Dealing With a Wolf in Sheep's Clothing
By Chip Brooker

Watch out for false prophets. They come to you in sheep’s clothing, but inwardly they are ferocious wolves. By their fruit you will recognize them.
— Matthew 7:15-16 (New International Version).

It’s 10:00 a.m. on Monday morning, and the Defendant just served you with its Original Answer. You’re relieved to see that Harvey Dent is representing the Defendant. You have a long history with Harvey, who was a law school classmate of yours. Although more of an acquaintance than a friend, you generally like and respect Harvey and have had lunch with him on more than one occasion. You believe that he is a good attorney based on your service together on bar committees and one prior experience where he represented a co-defendant. You’re immediately convinced that this case will be more enjoyable with Harvey on the other side.

Fast forward six months. To date, Harvey has not produced any documents in response to your written discovery requests, which were due months ago. Initially, he requested a short extension as a professional courtesy. Then, he had some excuse about a personal matter. Then, he blamed his client for the continuing delays. Then, he promised you’d have them by Friday, but Friday came and went without any documents. When you reached an agreement concerning the production in a telephone call, he later claimed to have forgotten about any agreement. At each step, Harvey has smiled, thanked you for being so understanding, and continued to make false promises for the benefit of his client. Then, after finally producing his documents, Harvey files a motion to compel against your clients—without any warning—in an attempt to cast your clients as the bad guys. Your clients are furious. They want results, have seen none, and believe that they are losing the upper hand. How do you avoid being taken advantage of again?

Much has been made of the all-too-common “obstreperous counsel,” who thumbs his nose at the Texas Lawyer’s Creed and disagrees at the top of his lungs for the sake of disagreeing. However, a two-faced attorney like Harvey Dent who lies waiting behind the proverbial log or politely takes advantage of a prior history with counsel can be just as difficult or painful to deal with. Ultimately, actions always speak louder than words, and you should approach any opposing counsel—no matter how friendly or agreeable they are—with a what-have-you-done-for-me-lately attitude. Here is some advice for identifying and dealing with wolves in sheep’s clothing, like Harvey Dent:

1. Set Deadlines.
If you have a prior history or personal relationship with opposing counsel, it is common and reasonable to afford them more extensions or extend them more professional courtesies than you otherwise would. However, to borrow an old adage—fool me once, shame on you; fool me twice, shame on me. You must ultimately hold yourself accountable to your client above all else, which requires holding opposing counsel accountable, even if doing so requires pushing, pestering, or bugging a friend, acquaintance, or colleague. One option is to set and enforce deadlines. These deadlines can be internal or external. For example, you can unilaterally impose deadlines on opposing counsel by setting a date certain by which they must perform. Alternatively, you can set internal deadlines with yourself or your client to write a demand letter or otherwise document the file by a date certain if opposing counsel continues to drag their feet. Regardless, you must set deadlines and act upon them.

2. Document the File.
No matter how much you trust opposing counsel, the safest course of action is to document all agreements. That way opposing counsel cannot claim to have forgotten about an agreement made during telephone calls. You may also need to build a file demonstrating how opposing counsel slow plays you or lays behind the log. For example, if opposing counsel is avoiding telephone calls, send yourself contemporaneous emails each time you leave opposing counsel a voicemail or send those emails to a colleague who sat with you while you attempted to make the call. If you have a voice-over-IP telephone or another telephone system that logs calls, then you can save your telephone call logs. You can also send emails to opposing counsel asking them to confirm receipt of your voicemail. Hopefully, this will prompt action from opposing counsel; otherwise, you have now built a record for the court.

3. Pull the Trigger.
Again, no matter what your relationship with opposing counsel is, you must be willing to pull the trigger when they fail to perform. You must be willing to file motions to enforce your Rule 11 agreements, and you must be willing to file motions to compel. You can always pull your motions down once opposing counsel toes the line again.

4. Separate Personal from Professional.
Documenting the file and filing motions are tricky because, generally speaking, opposing counsel will know exactly what you are doing. Like Harvey Dent, these wolves in sheep’s clothing have been trading on and taking advantage of your kindness, friendship, and/or professionalism. They may become defensive or angry when you begin to document the file or when you file motions because, at the end of the day, the truth is hard to face. Regardless of their reaction, you must separate personal relationships and friendships from your professional responsibility to your client. By setting deadlines, documenting the file, and filing motions, you are simply advancing the ball on behalf of your client and holding opposing counsel accountable to their professional and procedural responsibilities. The practice of law should never be personal, but it should always be professional. You must separate the two no matter who is on the other side.

Remember, actions always speak louder than words, and the practice of law is a what-have-you-done-for-me-lately world. Just because a good-ole-boy slaps you on the back and calls you “buddy” doesn’t mean he didn’t leave a “Kick-Me” sign on your back.

Chip Brooker is a business trial lawyer in the Dallas office of Haynes and Boone, LLP. He may be reached at chip.brooker@haynesboone.com.