Practical Tactics for Dealing with a Rambo Attorney (February 2013)
Material for National Business Institute lecture, February 2013
Jujutsu is a Japanese martial art and a method of close combat for defeating an armed and armored opponent in which one uses no weapon or only a short weapon. … “Ju” can be translated to mean “gentle, supple, flexible, pliable, or yielding.” “Jutsu” can be translated to mean “art” or “technique” and represents manipulating the opponent’s force against himself rather than confronting it with one’s own force.
My definition of a Rambo attorney is someone who uses an overly aggressive approach in which intimidation seems to be the primary goal. Such tactics can often be overcome by using a flexible, yielding approach that transfers Rambo’s own aggression against him. This involves deflecting rather than directly opposing Rambo’s more extreme tactics.
There’s an obvious temptation to vigorously oppose everything the Rambo attorney does. However one is better off distinguishing what in Rambo’s approach is reasonable and what is unreasonable and then yielding on the reasonable while resisting the unreasonable.
Take an example of responding to discovery. A Rambo litigator will typically issue discovery requests that are unduly burdensome and overly broad. One could object to all of the discovery and file a general objection. See SCRCP 26(a). However one could also respond to what is not unduly burdensome and overly broad and then object to the remainder.
In the first example, the Rambo litigator will file a motion to compel. At the hearing the court will determine some of Rambo’s discovery requests are reasonable and order the opposing attorney to respond. Rambo might even get some of his attorney’s fees. However if one responds to some of Rambo’s discovery requests and objects to the remainder Rambo is left with a difficult choice: file a motion to compel for the remainder and possibly lose or simply forgo seeking the remainder. A motion to compel filed in this second situation will likely lead to the court determining that much of the objected-to discovery is overly broad or unduly burdensome. The opposing attorney might even be awarded some fees.
Note how this second option uses Rambo’s aggression against him. A non-Rambo discovery request does not allow opposing counsel to answer what he or she deems appropriate while objecting to the remainder. In contrast, a Rambo discovery request allows one, with limited impunity, to pick and choose what to answer and what to object to. One can limit Rambo’s discovery through Rambo’s aggression.
There will be a temptation to counter Rambo’s discovery requests by issuing nearly identical and reciprocal discovery requests. Resist that temptation. There are ethical concerns in issuing discovery that the attorney believes is overly broad and unduly burdensome. South Carolina Rule of Civil Procedure 11(a) reads:
Every pleading, motion or other paper of a party represented by an attorney shall be signed in his individual name by at least one attorney of record who is an active member of the South Carolina Bar, and whose address and telephone number shall be stated. … The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information and belief there is good ground to support it; and that it is not interposed for delay.
South Carolina Rule of Civil Procedure 7(b)(2) makes Rule 11(a) applicable to discovery requests (which would be considered “other papers provided for by these rules”):
The rules applicable to captions, signing, and other matters of form of pleadings apply to all motions and other papers provided for by these rules.
Rule 26(g), SCRCP makes the application of Rule 11 to discovery requests and responses even more explicit:
Every request for discovery or response or objection thereto made by a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign the request, response, or objection and state his address. The signature of the attorney or party constitutes a certification in accordance with Rule 11.
When you issue discovery requests that you contend are overly broad and unduly burdensome you stoop to Rambo’s level and violate Rule 11.
Another temptation to resist when dealing with a Rambo attorney is allowing Rambo to determine one’s litigation strategy. Opposing force with force does you and your client little good. It actually helps Rambo as his litigation strategy is now dictating your litigation strategy. Instead one should determine how one would go about preparing for trial if going against a less aggressive attorney and pursue that path to the extent possible.
A Rambo attorney will take steps to frustrate this strategy. Again, rather than opposing with direct force, one should resist with indirect force. One key is to make sure that communications with Rambo are in writing. If one is trying to schedule a deposition, one should email Rambo a request to set a deposition and ask for his availability during the time period one is seeking to take the deposition. If Rambo doesn’t respond, remind him again (again in writing). If Rambo still doesn’t respond, schedule the deposition without worrying about Rambo’s schedule. Rambo can always file a motion for a protective order if the date doesn’t work for him but you will have documentation that you tried to determine his availability before scheduling the deposition.
Rambo, in contrast, will often schedule things without clearing the date with you and will then refuse to reschedule. Send Rambo your rescheduling request in writing with your explanation as to why you need the matter rescheduled and then, if and when Rambo doesn’t respond or still refuses to reschedule, you can file a motion for a protective order pursuant to SCRCP 26(c). One can be awarded attorneys fees pursuant toRule 37(a)(4) if the court determines Rambo was being unreasonable.
One tactic I see Rambo attorneys often employing is what I call the accusatory epistle. This multi-page letter will spew forth varied and incredible accusations against one’s client with a final admonition to both: 1) inform your client to stop his or her wretched/vile behavior; and 2) demand that you immediately respond to all of these accusations by explaining your client’s position on each one. Frequently these letters will conclude with a sentence exclaiming that your failure to respond will be treated as an admission of your client’s guilt and that this letter will be used as an exhibit to demonstrate your client’s acquiescence to the accusations.
You could spent time reacting to these letters. Of course, your client incurs fees when you do so and you end up providing Rambo information helpful to his case without doing anything to advance your client’s case. Or you could simply write back to Rambo:
I am in receipt of your correspondence dated [whenever]. Typically I do not respond to such allegations unless I am provided substantial evidence of my client’s misbehavior sufficient that I believe a response is required or unless a formal motion has been filed regarding such behavior that demands my response.
Please further note that my failure to respond to your accusations is not to be treated as any sort of admission but simply is my decision not to respond to every accusation you care to make about my client. In the future please treat any non-response on my part as merely a refusal to address your accusation and not as any admission by my client.
Should you chose to introduce your letter to demonstrate my client’s alleged acquiescence to your accusations, I intend to introduce this letter into evidence to demonstrate that this is not the case. If you send similar letters in the future and do not receive a response, please refer to this letter and you will understand why.
In my experience Rambo will provide his evidence if he has it and will do nothing further if he doesn’t. If Rambo seeks to introduce his multiple epistles at trial to “prove” your client’s bad behavior, one can simply object and note that this one letter explains that your refusal to respond proves nothing and that Rambo was aware why you didn’t respond.
One should try to minimize verbal communications with Rambo because your disputes can quickly devolve into a swearing contest. When Rambo calls, don’t take the call. Instead send Rambo a polite email, one that does not lay blame, asking Rambo to limit communications to writing. A sample email might read:
Given the problems we have had in communicating civilly in the past and concerns that oral communications might be misunderstood, I believe it best if we limit our communications to writing. This will reduce the possibility of future incivility or misunderstandings.
During depositions, if Rambo becomes too aggressive, one can consider filing a motion for a protective order. SCRCP 30(j)(3) specifically authorizes defending counsel to confer with the witness about the possibility of seeking a protective order. SCRCP 30(d), describes the basis and remedies for such a request:
At any time during the taking of the deposition, on motion of a party or the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the court in the place where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in Rule 26(c). If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.
If one terminates a deposition based on Rule 30(d), Rule 30(j)(3) requires that the motion for a protective order be filed within five business days or the right to object is waived:
Counsel directing that a witness not answer a question on those grounds or allowing a witness to refuse to answer a question on those grounds shall move the court for a protective order under Rule 26(c), SCRCP, or 30(d), SCRCP, within five business days of the suspension or termination of the deposition. Failure to timely file such a motion will constitute waiver of the objection, and the deposition may be reconvened.
On the rare occasions (twice in twenty years) when Rambo has gotten too offensive in a deposition, I have conferred with my client, terminated the deposition, and filed a motion for a protective order. In both cases the family court placed limitations on opposing counsel’s conduct before allowing the deposition to resume. In one case Rambo never reset the deposition. In the other case Rambo was much better behaved.
Especially in the context of family court motions it can be difficult to document and demonstrate Rambo’s tactics and often one will need to wait until trial to demonstrate Rambo’s overbearing actions and behavior. However one is more likely to convince the court that one had to incur fees to counter such overbearing tactics if one documents everything in writing and deigns from stooping to Rambo’s level. A judge who sees two attorneys being uncivil to each other cannot be expected to determine who is being more uncivil. However when a judge observes all the incivility flowing one direction, it typically gets the judge’s attention.
There’s a Southernism on point: “Never wrestle with a pig: You both get all dirty, and the pig likes it.” Stop wrestling Rambo; master Jujutsu instead. To butcher the animal metaphors, I sometimes envision Rambo as an enraged bull with myself as a matador. Try to get Rambo to charge the red cape instead of charging you.
My friend and colleague M.J. Goodwin takes issue with the title of this seminar. She writes, “I maintain that the overall extended metaphor fails because Rambo himself (the character on which this is based) is not overly aggressive. He only responded when ‘they drew first blood.’ And then he kicked their deserving asses. Rambo is completely, 100% reactive. Any movie buff is going to know that. ;)”
Since Rambo is male, I will use the masculine pronoun when referring to the “Rambo” attorney. This is not intended to discount that the Rambo attorney is sometimes a woman.
Unlike Federal procedure, in which discovery is not stayed by filing a motion for a protective order, it is unclear whether discovery is stayed in South Carolina by such a filing. However, if Rambo won’t agree to stay discovery pending the resolution of the motion for a protective order one can always seek an expedited hearing by attaching a short affidavit demonstrating that Rambo won’t stay discovery until the motion is heard. In my limited experience on this issue, the court routinely grants such expedited hearing requests. Rambo is even more likely to be ordered to pay attorney’s fees for his intransigence.