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Using effective remedies to survive the Rambo Litigator

USING EFFECTIVE REMEDIES TO SURVIVE

THE RAMBO LITIGATOR

(and a few thoughts on avoiding “Rambo” altogether)

 

 

 

 

I.         Identifying the “Rambo” Litigator

 

We have all encountered a difficult personality … it can be a neighbor, or a co-worker, or a sibling’s new partner, or someone who has casually entered our circle of friends.  When there is a personality conflict – or the person is, frankly, simply impossible to be around – we can often avoid him or her.  Granted, some people are easier to avoid than others, depending on the circumstances, but you have the option of electing not to spend time with them.

However, when the difficult personality is now the lawyer in charge of the other side of your litigation matter … there is no avoidance.  You are stuck.  The purpose of this article is to help you decide how to survive this unfortunate situation.

 

 

What Do We Mean by “Rambo”?

 

            This is a convenient and catchy phrase which is more socially acceptable than the vulgarities you will often use in private to describe the litigator who seems intent on making your life miserable.  A non-scientific survey of fellow litigators resulted in the following list of actions which warrant the “Rambo” label:

1.         Not returning your calls, but claiming by letter or email that you do not respond promptly to him/her.

2.         Sending letters or emails which demand instant attention (which is never reciprocated).

3.         Noticing depositions without contacting you in advance to pick a mutually acceptable date.

4.         Threatening motions, sanctions, and screaming “frivolous” at the drop of a hat.

5.         Telling you one thing in person and then reneging later – the person you cannot trust on a handshake.

6.         Slinging insults/personal attacks (i.e., “Where did you get your law degree… the back of a magazine?”).

7.         Making inappropriate and/or speaking objections at depositions.

8.         Conducting excessive discovery for the purpose of harassment (i.e., serving 280 requests to admit).

9.         Arguing (orally or in briefs) outside of the record – making up facts that help his/her case.

10.       Blatantly misrepresenting the law.

11.        Interrupting during your argument

12.       Exhibiting the general “weasel” factor, like faxing discovery requests over at 4:55 pm on a Friday.

 

 

 

 

 

What Makes Rambo Tick?

 

            There are two types of people who rise to the level of “Rambo.”  One type is just generally not very bright and, although difficult to get along with, does not intend to be difficult.  Let’s call this group “Dumb Rambo.”  The other type is sneaky and mean-spirited and intends to be difficult and make your life miserable.  Let’s call this group “Mean Rambo.” 

            Dumb Rambo is not a very good lawyer.  He or she doesn’t really have a grasp on what the law is, or how civil procedure works, but blunders ahead anyway, and masks a lack of knowledge with bluster and arrogance.   Dumb Rambo:

1.                   Misrepresents law and or the record.  He or she genuinely does not seem to see what the fuss is about.

2.                  Interrupts constantly, whether at a meeting, a deposition or a motion.  He or she does not grasp the idea of taking turns.

3.                  Makes insults that surprise everyone present.  Dumb Rambo takes everything personally and consequently overreacts.

4.                  Loses his or her temper easily and frequently.

5.                  Tells you what you want to hear and then stabs you in the back (like the attorney who orally agrees to extend a discovery deadline and then refuses to answer discovery after the original deadline).

 Mean Rambo knows the law and civil procedure and uses them to the fullest extent possible.  He or she wants to win and wants to clearly dominate you.  It is not enough to prevail in the lawsuit – this litigator wants to show you who is the boss.  If he or she can humiliate you or cause you to be ridiculed, so much the better.  To this person, anything and everything is fair game in the quest to win. 

            Mean Rambo:

1.                   Weasels around the rules of civil procedure.

2.                  Can spot the “poor” client and knows how to run up the bill (i.e., knowing that your client cannot afford to litigate a matter forever so filing a ton of motions, discovery, etc.)

3.                  Makes every contact difficult. 

4.                  Pretends to be your best friend and then does something so completely unethical and underhanded that you are shocked.

 

 

What Is His or Her Agenda?

 

            The Dumb Rambo doesn’t really have an agenda other than trying to represent the client and win.  He or she is struggling to understand what is going on, feels cornered and beleaguered, and keeps trying new tactics and ideas, hoping they will work.  Dumb Rambo is puzzled by how things work out and does not understand why he or she loses.

            The Mean Rambo wants to intimidate you, wear you down, and overwhelm you.  He or she wants you to cringe when you find out he or she is on the other side (and you do.)  He hopes you will give up, or settle early, or dread the case so much that it languishes in a corner of your office. 

 

Ethics and Civility

            It is important to remember that we must not, and should not, sink to the level of our opponent.  The SCR Chapter 20, Rules of Professional Conduct for Attorneys, governs our conduct.  The preamble includes the following:

[5] A lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs. A lawyer should use the law's procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also a lawyer's duty to uphold legal process. (Emphasis added).

 

SCR Chapter 20 has the following section on the advancing of claims or defenses that are unwarranted under the law:

SCR 20:3.1 Meritorious claims and contentions

(a)  In representing a client, a lawyer shall not:

(1) knowingly advance a claim or defense that is unwarranted under existing law, except that the lawyer may advance such claim or defense if it can be supported by good faith argument for an extension, modification or reversal of existing law;

(2) knowingly advance a factual position unless there is a basis for doing so that is not frivolous; or

(3) file a suit, assert a position, conduct a defense, delay a trial or take other action on behalf of the client when the lawyer knows or when it is obvious that such an action would serve merely to harass or maliciously injure another.

(b) A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in deprivation of liberty, may nevertheless so defend the proceeding as to require that every element of the case be established.

 

ABA Comment

[1] The advocate has a duty to use legal procedure for the fullest benefit of the client's cause, but also a duty not to abuse legal procedure. The law, both procedural and substantive, establishes the limits within which an advocate may proceed.  However, the law is not always clear and never is static.  Accordingly, in determining the proper scope of advocacy, account must be taken of the law's ambiguities and potential for change.

[2] The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery.  What is required of lawyers, however, is that they inform themselves about the facts of their clients’ cases and the applicable law and determine that they can make good faith arguments in support of their clients’ positions. Such action is not frivolous even though the lawyer believes that the client's position ultimately will not prevail.  The action is frivolous, however, if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law.

[3] The lawyer’s obligations under this Rule are subordinate to federal or state constitutional law that entitles a defendant in a criminal matter to the assistance of counsel in presenting a claim or contention that otherwise would be prohibited by this Rule.

 

            Lawyers are prohibited from unnecessarily delaying litigation:

 

SCR 20:3.2 Expediting litigation

A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.

 

ABA Comment

[1] Dilatory practices bring the administration of justice into disrepute. Although there will be occasions when a lawyer may properly seek a postponement for personal reasons, it is not proper for a lawyer to routinely fail to expedite litigation solely for the convenience of the advocates. Nor will a failure to expedite be reasonable if done for the purpose of frustrating an opposing party's attempt to obtain rightful redress or repose. It is not a justification that similar conduct is often tolerated by the bench and bar. The question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay.  Realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client.

 

Lawyers must not lie to the court:

 

SCR 20:3.3 Candor toward the tribunal

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(3) offer evidence that the lawyer knows to be false.  If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.  A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter that the lawyer reasonably believes is false.

(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

(c) The duties stated in pars. (a) and (b) apply even if compliance requires disclosure of information otherwise protected by SCR 20:1.6.

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.

 

ABA Comment

[1] This Rule governs the conduct of a lawyer who is representing a client in the proceedings of a tribunal.  See Rule 1.0(m) for the definition of “tribunal.”  It also applies when the lawyer is representing a client in an ancillary proceeding conducted pursuant to the tribunal's adjudicative authority, such as a deposition.  Thus, for example, paragraph (a)(3) requires a lawyer to take reasonable remedial measures if the lawyer comes to know that a client who is testifying in a deposition has offered evidence that is false.

[2] This Rule sets forth the special duties of lawyers as officers of the court to avoid conduct that undermines the integrity of the adjudicative process.  A lawyer acting as an advocate in an adjudicative proceeding has an obligation to present the client's case with persuasive force.  Performance of that duty while maintaining confidences of the client, however, is qualified by the advocate's duty of candor to the tribunal.  Consequently, although a lawyer in an adversary proceeding is not required to present an impartial exposition of the law or to vouch for the evidence submitted in a cause, the lawyer must not allow the tribunal to be misled by false statements of law or fact or evidence that the lawyer knows to be false.

 

 Or be unfair to the opposing party or opposing counsel:

 

SCR 20:3.4 Fairness to opposing party and counsel

A lawyer shall not:

(a) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.  A lawyer shall not counsel or assist another person to do any such act;

(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;

(c) knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists;

(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party;

(e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or

(f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless:

(1) the person is a relative or an employee or other agent of a client; and

(2) the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information.

 

ABA Comment

[1]  The procedure of the adversary system contemplates that the evidence in a case is to be marshaled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like.

[2] Documents and other items of evidence are often essential to establish a claim or defense.  Subject to evidentiary privileges, the right of an opposing party, including the government, to obtain evidence through discovery or subpoena is an important procedural right.  The exercise of that right can be frustrated if relevant material is altered, concealed or destroyed.  Applicable law in many jurisdictions makes it an offense to destroy material for purpose of impairing its availability in a pending proceeding or one whose commencement can be foreseen. Falsifying evidence is also generally a criminal offense.  Paragraph (a) applies to evidentiary material generally, including computerized information. Applicable law may permit a lawyer to take temporary possession of physical evidence of client crimes for the purpose of conducting a limited examination that will not alter or destroy material characteristics of the evidence.  In such a case, applicable law may require the lawyer to turn the evidence over to the police or other prosecuting authority, depending on the circumstances.

[3] With regard to paragraph (b), it is not improper to pay a witness’s expenses or to compensate an expert witness on terms permitted by law. The common-law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying and that it is improper to pay an expert witness a contingent fee.

[4] Paragraph (f) permits a lawyer to advise employees of a client to refrain from giving information to another party, for the employees may identify their interests with those of the client.  See also Rule 4.2.

 

Or seek to improperly influence the court:

 

SCR 20:3.5 Impartiality and decorum of the tribunal

A lawyer shall not:

(a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law;

(b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order or for scheduling purposes if permitted by the court.  If communication between a lawyer and judge has occurred in order to schedule the matter, the lawyer involved shall promptly notify the lawyer for the other party or the other party, if unrepresented, of such communication;

(c) communicate with a juror or prospective juror after discharge of the jury if:

(1) the communication is prohibited by law or court order;

(2) the juror has made known to the lawyer a desire not to communicate; or

(3) the communication involves misrepresentation, coercion, duress or harassment; or

(d) engage in conduct intended to disrupt a tribunal.

 

            Lawyers must always be truthful:

 

SCR 20:4.1 Truthfulness in statements to others

(a) In the course of representing a client a lawyer shall not knowingly:

(1) make a false statement of a material fact or law to a 3rd person; or

(2) fail to disclose a material fact to a 3rd person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by SCR 20:1.6.

(b) Notwithstanding par. (a), SCR 20:5.3(c)(1), and SCR 20:8.4, a lawyer may advise or supervise others with respect to lawful investigative activities.

 

            The misconduct rule is often applicable to the Rambo litigator.  It bans dishonesty, fraud, deceit, violation of rules or statutes, and any criminal acts that reflect adversely on the lawyer’s “honesty, trustworthiness or fitness as a lawyer:”

SCR 20:8.4 Misconduct

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

 (d) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law;

(e) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; or

(f) violate a statute, supreme court rule, supreme court order or supreme court decision regulating the conduct of lawyers;

(g) violate the attorney's oath;

(h) fail to cooperate in the investigation of a grievance filed with the office of lawyer regulation as required by SCR 21.15(4), SCR 22.001(9)(b), SCR 22.03(2), SCR 22.03(6), or SCR 22.04(1); or

(i) harass a person on the basis of sex, race, age, creed, religion, color, national origin, disability, sexual preference or marital status in connection with the lawyer’s professional activities.  Legitimate advocacy respecting the foregoing factors does not violate par. (i).

 

 

 

II.       Effective Techniques for Dealing with Rambo Litigators

 

            There are practical and procedural ways of dealing with a Rambo litigator.  We will first discuss the practical ways and then the procedural ways.

 

Practical Methods for Dealing with Rambo

1.                   Always communicate in writing so you have a record of what was said when.  Do not assume anything.  Do not reference conversations without a full restatement of what was said.   

a.                  Always document extensions of scheduling order deadlines, no matter who is on the other side, but especially with Rambo.

b.                  If a deposition or mediation or other scheduled event is cancelled, document the circumstances with a letter.

c.                   See attached samples.

2.                  If a letter from Rambo to you contains an inaccurate rendition of what has happened, address it in writing.  Always assume, when writing a letter to Rambo, that the judge will see it.

3.                  Videotape depositions so his or her conduct is documented.

4.                  Make the file a priority in your office so you do not create opportunities for Rambo to be difficult.

5.                  Never lose your temper or state things that may well be justified by your opponent’s actions, but would look bad to the judge or the jury or your peers or OLR.

6.                  Always have someone present when you are in the same room as Rambo.  Do not give him or her the opportunity to say you said things you did not.

7.                  Keep the white hat on your head at all times.

 

Procedural Methods for Dealing with Rambo

 

1.                   Motions to strike pleadings

 

2.                  Motions for frivolousness

a.                  Wis. Stat. § 802.05 requires pleadings and papers to meet three requirements:

                                                                    i.                         It is not interposed for any improper purpose.

                                                                 ii.                        It is well grounded in fact.

                                                               iii.                        It is warranted by existing law or a good faith argument for changing it.

b.                  Counsel signing a pleading or paper represents that a “reasonable inquiry” has been conducted on points (b) and (c) before the documents are served and filed.

c.                   Each claim asserted in a pleading must meet this standard.  There is no immunity from sanctions for frivolous claims simply because one of many asserted theories might be viable:  “the inclusion of one sufficient and adequately investigated claim does not permit counsel to file unsubstantiated claims as riders.”  Jandrt ex rel. Bureggeman v. Jerome Foods, Inc., 227 Wis. 2d 531, 552-53, 597 N.W.2d 774 (1999).

3.                  Always – even without a Rambo – be careful, accurate, and honest.

4.                  Dealing with speaking objections: 

a.                  Federal Court:  Fed. R. Civ. Pro. 30(c)(2) provides that any objection during a deposition “must be stated concisely and in a non-argumentative and non-suggestive manner.”

b.                  Hall v. Clifton Precision, 150 F.R.D. 525, 528 (E.D. Pa. 1993)

The underlying purpose of a deposition is to find out what a witness saw, heard, or did – what the witness thinks.  A deposition is meant to be a question-and-answer conversation between the deposing lawyer and the witness.  There is no proper need for the witness’s own lawyer to act as an intermediary, interpreting questions, deciding which questions the witness should answer, and helping the witness to formulate answers …  It is the witness – not the lawyer – who is the witness.

 

c.                   Rule 32(d)(3)(B) preserves objections unless the ground of the objection may have been corrected at that time.” Objections as to form are an example of an objection which is waived if not made at the time of the taking of the deposition.  Questions to which timely objections should be made during a deposition include those which are:

                                                                    i.                        Leading or suggestive

                                                                 ii.                        Ambiguous or uncertain

                                                               iii.                        Compound

                                                                iv.                        Assume facts not in evidence

                                                                  v.                        Call for a narration

                                                                vi.                        Call for speculation or conjecture

                                                             vii.                        Argumentative

d.                  As the court noted in Hall, constant objections and interruptions disrupt the flow of the testimony and can impede the ability to ascertain the truth:

[D]epositions are to be limited to what they were and are intended to be:  question-and-answer sessions between a lawyer and a witness aimed at uncovering the facts in a lawsuit.  When a deposition becomes something other than that because of the strategic interruptions, suggestions, statements, and arguments of counsel, it not only becomes unnecessarily long, but ceases to serve the purpose of the Federal Rules of Civil Procedure:  to find and fix the truth.  Hall, 150 F.R.D. at 530.

 

5.                  Dealing with instructions not to answer

a.                  Fed. R. Civ. Pro 30(c)(2) provides that a lawyer may instruct a witness not to answer only when necessary to:

                                                                    i.                        Preserve a privilege

                                                                 ii.                        Enforce a limitation directed by the court

                                                               iii.                        Present a motion under 30(d)(3)

b.                  The leading case of Ralston Purina Co. v. McFarland, 550 F.2d 967 (4th Cir. 1977) sets forth a series of questions wherein a party representative was instructed not to answer certain questions.  The court found such instructions to be “indefensible and utterly at variance with the discovery provisions of the Federal Rules of Civil Procedure.”  The court referenced Rule 26(b)(1) which allows discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.  Id. At 973

6.                  The “Squeal Rule:” When do you have to report?  Although it is widely believed that you must always report misconduct, it is not that simple.  You are only required to report when the violation “raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.”  And, if reporting the violation involves confidential client information, you must consult with your client and abide by your client’s wishes.

SCR 20:8.3 Reporting professional misconduct

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.

(c) If the information revealing misconduct under subs. (a) or (b) is confidential under SCR 20:1.6, the lawyer shall consult with the client about the matter and abide by the client's wishes to the extent required by SCR 20:1.6.

(d) This rule does not require disclosure of any of the following:

(1) Information gained by a lawyer while participating in a confidential lawyers’ assistance program.

(2) Information acquired by any person selected to mediate or arbitrate disputes between lawyers arising out of a professional or economic dispute involving law firm dissolutions, termination or departure of one or more lawyers from a law firm where such information is acquired in the course of mediating or arbitrating the dispute between lawyers.

 

Wisconsin Comment

The change from “having knowledge” to “who knows” in SCR 20:8.3(a) and (b) reflects the adoption of the language used in the ABA Model Rule.  See also SCR 20:1.0(g) defining “knows.”  The requirement under paragraph (c) that the lawyer consult with the client is not expressly included in the Model Rule.  Paragraph (d)(1) differs slightly from the Model Rule.  It deletes reference to judges.  The reference to confidential lawyers’ assistance programs includes programs such as the state bar sponsored Wisconsin Lawyers’ Assistance Program (WISLAP), the Law Office Management Assistance Program (LOMAP), or the Ethics Hotline.

 

ABA Comment

[1] Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules of Professional Conduct.  Lawyers have a similar obligation with respect to judicial misconduct.  An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover.  Reporting a violation is especially important where the victim is unlikely to discover the offense. 

[2] A report about misconduct is not required where it would involve violation of Rule 1.6.  However, a lawyer should encourage a client to consent to disclosure where prosecution would not substantially prejudice the client's interests.

[3] If a lawyer were obliged to report every violation of the Rules, the failure to report any violation would itself be a professional offense.  Such a requirement existed in many jurisdictions but proved to be unenforceable.  This Rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent.  A measure of judgment is, therefore, required in complying with the provisions of this Rule.  The term “substantial” refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware.  A report should be made to the bar disciplinary agency unless some other agency, such as a peer review agency, is more appropriate in the circumstances.  Similar considerations apply to the reporting of judicial misconduct.

[4] The duty to report professional misconduct does not apply to a lawyer retained to represent a lawyer whose professional conduct is in question.  Such a situation is governed by the Rules applicable to the client-lawyer

relationship.

[5] Information about a lawyer’s or judge’s misconduct or fitness may be received by a lawyer in the course of that lawyer s participation in an approved lawyers or judges assistance program.  In that circumstance, providing for an exception to the reporting requirements of paragraphs (a) and (b) of this Rule encourages lawyers and judges to seek treatment through such a program.  Conversely, without such an exception, lawyers and judges may hesitate to seek assistance from these programs, which may then result in additional harm to their professional careers and additional injury to the welfare of clients and the public.  These Rules do not otherwise address the confidentiality of information received by a lawyer or judge participating in an approved lawyers’ assistance program; such an obligation, however, may be imposed by the rules of the program or other law.

 

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