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Opposing Counsel, The Sabers, They Rattle!

by | Jun 16, 2016 | Family Law

The “it’s going to get ugly unless you…” is a phrase from opposing counsel I may never tire of. I saw that in an email to a junior associate of ours. It seems silly to me. I’m not one for saber rattling, myself. Walk softly and carry a big stick, I think the saying goes. Play the lie, as the golfers speak. There’s few worse feelings than being called on a bluff at the poker table as the chips are scooped away unless it is watching your divorce case crumble because you played the fool with your pomposity. 

Here is what’s really said behind the words “yield to me, or else.” What’s really being said is “I really don’t want my client in front of this judge.” Or, it’s “I don’t recognize you as a real threat.”

Let’s take those two assumptions in tum. The “I don’t really want my client in front of this judge” is a signal that opposing counsel knows that they don’t stand a chance.

Maybe they oversold their client at the consult (“I can make sure your spouse doesn’t see the children again”). Maybe they got deep enough with their client to realize what was told to them initially at the consult was nothing more than half-truths. Maybe they realized their client is that financially controlling in the marriage.

Or what is meant is “I don’t recognize you as a real threat.” I see that a lot with new atton1eys. The beauty of that approach is that they have no idea what they’re up against. From personal experience in Savannah, I’ve probably seen them in court before as I waited for my case to be called, but they were oblivious to my presence. I’ve seen their bad habits; they’ve not seen mine. I’ve watched their inability to lay evidentia1y foundation for “evidence.” Because that’s the great equalizer: the rules of evidence are the same, whether the att01ney is known or unknown. Or, often the “I don’t recognize you as a real threat” means that ‘Tm not going to spend much time on preparing this case.” And almost always to a disastrous end. I am oft reminded of my first trial in Gainesville, Georgia against a highly regarded Parmer from a highly regarded firm in that community. And he was representing a highly regarded client. They never saw it coming. The guy who mentored me through that one now sits as a judge.

So, poor divorce litigant, you are cc’d on the email from your attorney to opposing counsel where your hired voice box says “yield to me, or else” (“listen to how loud my saber rattles in its sheath”). It’s two days before your judgment day. Do you come clean with your counsel, or do you let them walk into the buzzsaw as the hold your hand? Or do you lay on the pressure to settle because it is about to be a disaster? So what if the opposing counsel is brand new? Who is mentoring them a,; they prepare for trial? Who is behind the scenes, making sure your attorney’s slimy dctics are opposed. My clients are never cc’d on such an email. I don’t write them.I I know what a valley of death walk such saber rattling can result in. But I do love receiving them.

David Purvis