Don't wrestle with a pig. You'll get filthy and the pig will love it.

I've spent much of this year conducting workshops on Legal Project Management, Estimating Costs and Becoming an Informed Purchaser. One theme from attendees, whether external lawyers, in-house counsel, or other clients, is the difficulty in dealing with a difficult opposing party or lawyer. Judge Gerald Bruce Lee of the Eastern District of Virginia provides great advice for dealing with that difficult opponent.

“Don't wrestle with a pig. You'll get filthy and the pig will love it.”

Judge Lee apparently conducts a vigorous "rocket docket".  But back to the advice.

Difficult opponents come in many forms - • The incompetent lawyer who does not know what he/she is doing, causing the good lawyer to do more work to try and solve the lack of action or competency, • The aggressive lawyer, whose modus operandi is to write frequent and lengthy letters threatening interlocutory applications, about all manner of issues. • The process driven lawyer, whose automated workflow systems sends reminder letters advising of your obligation to do something days or weeks before the due date, and other process letters which are irrelevant to the particular matter. But when it comes to anything out of the ordinary, the process lawyer has difficulty adjusting to the non standard matter. • The litigant with the "matter of principle" or whose case is their "cause".

There are various impacts when a matter involves one of these lawyers. There is a danger of a good lawyer becoming engaged in bun fight which distracts from the main issues, with associated increases in costs and possibly a blow out in duration of the matter.  The problem is how to close down the difficult opponent? If you have a docket judge like Judge Lee, it is easier, but even the most experienced lawyer is sometimes wary of ignoring aggressive correspondence, where there is the threat of an interlocutory application. In many jurisdictions, legislation such as the Civil Procedure Act (Victoria), the overarching obligations in the Federal Court Act, and the like, justify taking a position of non- engagement, and give clear direction to the judiciary to support such positions.

Sometimes its the client who is keen to engage in the fight. It takes confidence and experience to convince a client that it is preferable to take the high ground and simply give the opposing lawyer/party enough rope to hang themselves.

But it's never the answer to get down in the mud and get dirty.