Nearly all matrimonial practitioners have their own war stories regarding particular adversaries whom they have found to be particularly obnoxious or abusive.  Indeed, some attorneys pride themselves for instilling fear in or intimidating their opponents, whether it is through body language, oral statements, the proverbial letter-writing campaign, onerous and persistent motion practice, or multi-forum litigation. 


The easiest way out of this scenario at the initial client consultation is simply to refuse to represent the client whose spouse has retained that  particular adversary, and for counsel to save undue stress and burden on his or her existing law practice. 


Another way to address the problem, again at the initial client consultation, is to caution the potential client that his or her fees will escalate well beyond what the case may actually warrant by virtue of the identity and known conduct of opposing counsel, to increase the initial retainer accordingly, and to ensure that the potential client has the emotional stamina and financial means to withstand the anticipated barrage until the case is over. At the same time you, as the representing attorney, need the resources, the staff, the patience of Job, the restraint of a saint and, above all, the ability to crank out papers at light-speed, to handle the case.


The situation is entirely different, however, when the identity or the actual tactics of the abusive adversary are unknown until sometime after the client retains your services. At that point, you are, in essence, stuck, as is your client. It is often wise to consider which of the following three main reasons caused the opposing spouse to retain the opposing counsel in the first place, so that you and your client can formulate some reasonable expectations as to what will follow in the case.  


First, it is often the case that clients hire the attorneys who match their own particular personalities, in which case you will know that the opposing party is as obdurate as his or her attorney, and you should brace yourself and your client for the expected onslaught. 


It is equally true that some clients hire attorneys whom they believe fulfills their own personal ideal of what an attorney should be, sometimes based upon television or movie images.  In that case, bracing yourself and your client for the onslaught is again a wise idea, since the opposing client will likely be thrilled with the conduct of his or her new attorney (at least until he or she gets the bill). 


The third primary reason why clients hire particular attorneys is because they happen to know someone who used that attorney in his or her own divorce and that person was reasonably satisfied with the result. If the current client is essentially unaware of the abusive tactics (and generally inordinately high legal fees) that his or her newly-retained counsel will likely employ, there is a remote chance that your client’s spouse will realize, perhaps later rather than sooner, that he or she has made a serious mistake, and that new and perhaps more reasonable counsel will assume his or her representation.


Again, however, both parties will have to expend high legal fees, and the practitioner will have to deal with the added stress and burden on his or her existing law practice resulting from the abusive conduct of the existing opponent, at least until new counsel appears. 


The first telephone contact with the abusive opponent with whom one has never dealt is usually quite telling: The attorney is curt, arrogant and demeans your client.This type of behavior will continue unabated in subsequent telephone conversations with your opponent. One effective response is to be non-committal, to advise opposing counsel that you lack sufficient knowledge of the details of the marriage to comment on anyone’s behavior, and to avoid disparaging the other client. 


Another effective strategy is to be as pleasant as possible under the circumstances (often easier said than done), and simply to state that you will advise the client of your opponent’s statements either to resolve the potential problem  (if that is appropriate, based on the opponent’s comments), or to ignore them entirely and ask your opponent to refrain from disparaging your client since you have not disparaged his/hers, in the interest of trying to reach an amicable resolution (assuming no court action has been commenced). 


If a court case is pending, another option is, again, to avoid any direct response, but simply to state that the judge will need to reach his or her own conclusion based on all the facts in the case, which you are sure both sides will have the opportunity to present. The conversation should end there, as civilly as possible.


If any commentary is offered in response to the abusive adversary’s accusations against your client, whether in defense of your client or to accuse the other party of misconduct, that attorney will undoubtedly (i) repeat it to his/her client, thereby aggravating the existing marital conflict between the parties; and (ii) repeat it (accurately or inaccurately) to the Court in written submissions or oral argument, thereby forcing you to go on the defensive.


It is unfortunate but often true in these kinds of cases that the level of abuse or mistrust between the attorneys eventually escalates to the point where they can or will communicate only in writing. That situation virtually eliminates all hope of an early and cost-effective out-of-court resolution of the case, since attorneys who cannot communicate courteously with each other by telephone can hardly be expected to work together to settle a case without judicial intervention. 


It is usually impossible to blame the other side for the disintegration of the attorney-attorney relationship without sounding defensive to your client.  Often the best way to address it with a client is simply to acknowledge that the situation exists, that it is unfortunate, but that perhaps at some point a civil relationship between the lawyers can be re-established, even if it is with the Court’s assistance, which will inure to everyone’s benefit, especially the respective clients’.


So begins the ‘letter-writing campaign’, in which the abusive opponent accuses your client, and eventually you, in his or her letters with various misdeeds or statements, which you will want to deny most vehemently.  Sometimes attorneys are compelled to write detailed responses to such tirades.  It should always be borne in mind, however, that it is your client - who will be billed not only for your review of the initial letter, but for your detailed response - who will end up being frustrated not only with his or her spouse and the opposing counsel, but also with you, since your legal fees will reflect the time spent to respond to all the letters. 


I have found it effective to write one, and only one, detailed letter refuting the obnoxious accusations of the abusive opponent, and to add one additional paragraph at the end of that letter as follows:


“I am not authorized to incur additional fees on my client’s behalf to engage in a letter-writing campaign. Accordingly, I will not respond to any other letter(s) that you may send which contains any allegations or accusations against my client. Please deem any such allegations or accusations which you have made in the past, which you are currently making, or will make in the future, denied in toto.”


In the next letter from my opponent, I simply refer to the last paragraph of my prior letter to him or her of the applicable date, which I usually cut and paste from the original for my adversary’s “convenience”, containing the above language. All subsequent abusive letters from the abusive adversary are handled similarly. In that fashion, you can assure your client that no letters from opposing counsel are being ignored, but that you are not wasting his or her counsel fees to formulate responses to each of those letters. You are also not setting yourself up for a situation where such an opponent picks and chooses correspondence to annex as exhibits to Court submissions, in an attempt to make you look like the aggressor.


While you are maintaining your own (hopefully) low stress level and continuing to pay attention to your other clients’ cases, the effect of the abusive adversary’s letters on the parties’ own marital relationship cannot be ignored. It is the matrimonial lawyer’s obligation, certainly in New York State where this author practices, to send copies of all written materials to a client in his or her case, unless the client otherwise instructs. You will, undoubtedly, receive an angry or upset telephone call or letter from your client as each nasty letter from your opponent is forwarded to the client and the client is increasingly frustrated and offended by the charges leveled against him or her. The already troubled marriage will bear further strains as well. 


The options available to the practitioner under these circumstances are fairly limited. Occasionally, your client may instruct you not to forward any such correspondence to him or her until further notice. Absent that direct instruction, if the opposing attorney reflects the personality of the opposing spouse, or is behaving just as the opposing spouse thinks lawyers should behave (as noted above), chances are high that the opposing counsel’s letters are mirror images of the ever-deteriorating marital relationship. (Orders of protection, or similar devices available in different states, may need to be obtained to insulate your client from sufficiently abusive spousal conduct, but this will not insulate the client from the attorney’s letters.) 


Your client should be reassured that the abusive attorney’s letters are not going unanswered, but that you are not wasting legal fees with detailed responses (see above), and that you are properly conserving your client’s financial resources for the judicial process. Your client will then need to muster all the emotional support that he or she has available, whether through therapy, or through his or her personal network of friends and family - not from you. That is why, as noted at the outset of this article, your client will need the emotional fortitude to withstand the barrage in which you and your client are now in the midst of enduring.


The last, and most grueling, mechanism available to the abusive adversary is to bombard you with discovery demands and motion papers, sometimes in several different courts or states at the same time (depending upon the jurisdictional requirements of the relevant courts and states). 


Discovery demands, which will be addressed first, are extremely easy to prepare and serve and can be inordinately onerous. In New York, written interrogatories may be served in addition to taking a spouse’s deposition. Many attorneys serve “boilerplate” interrogatories that often bear little or no reasonable relationship to the case, or which are entirely duplicative in information already provided to the other side via deposition testimony or documentary disclosure. In addition, a lengthy boilerplate “notice to produce” may be served which, again, often bears little or no reasonable relationship to the case, or which may be entirely duplicative in information already provided to the other side. 


There are several obvious options for responding to these obnoxious discovery devices, which are not mutually exclusive from the other: (i) serve the exact same demands on your opponent (but do not expect to get full and proper responses); (ii) reserve a full day or more to prepare full and complete responses to the demands (but expect to incur your client’s wrath for being the “good guy” while he or she claims that your opponent has the upper hand); and (iii) make a motion to quash or vacate the demands (but expect to lose, so that you can be ready to respond to the demands as the Court may direct). 


If you opt for serving the same demands on your opponent and end up receiving inadequate responses, while, at the same time, you have served full and complete responses to your adversary’s burdensome demands, you may find yourself in a good position with the Court to request that your adversary be precluded from presenting proof as to any of the material which has not yet been provided by him or her.


It is very easy to get besieged during the discovery process. That is where a well-organized client can help. Whether you practice in a large or small firm, no client wants to pay his or her attorney or a paralegal to sift through shoeboxes or bags of the client’s own disorganized documents. This should be made clear to the client from the start; if they do not understand how seriously high their bill can become from responding to onerous discovery demands by reviewing their own disorganized documents, one of your bills following service on your firm of those demands should make it eminently clear to the client that his or her involvement in organizing and compiling the responses is critical to keeping the legal fees relatively manageable.  


This does not avoid the problem that may result from the other side’s discovery production: you may be served with numerous disorganized files or boxes of perhaps deliberately non-responsive and disorganized material (another favorite  trick of the abusive adversary).  


One way to avoid this scenario is to be very careful of what you demand from your opponent by way of discovery, for if you request a lot, you might actually get it. The only other way to handle this situation is simply to be patient. The client should, of course, be informed of the situation so the bill for reviewing and organizing the documents does not come as a complete shock. 

Review each and every document produced. The abusive adversary rarely does so in these circumstances, and you may actually find a “smoking gun” somewhere in the mess.  If you complain about the mess and return it to your opponent before actually reviewing it, document by tedious document, the “smoking gun” that you never saw may be removed by your opponent, and you may receive yet another, but smaller mess to review.


All the above will eventually lead to motion practice before the court(s), sometimes sooner and sometimes later in the case. The abusive adversary’s motion papers are generally of two types: (i) verbose, filled with underlined text, bold print and exclamation marks deriding your client and, often, you; or (ii) court forms containing minimal or false information. The motion papers may look intimidating, but only because they have numerous exhibits annexed to them which give the appearance of great heft and substantiation for the positions taken by your opponent in what are otherwise skimpy or conclusory legal arguments. 


Both types of motions usually require court appearances, or, the very least, written responses to the Court. Most courts are loath to read lengthy submissions. They are simply too busy and have too heavy a caseload to waste much time on such things. If you practice before a busy court, the heavy weight of exhibit-laden motion papers served by your opponent may inure to his or her detriment. On the other hand, they cannot go unanswered. 



Another favorite “trick” of the abusive adversary is to make these motions on inordinately short notice, served over a weekend or vacation period or with knowledge that you are out of town, and to refuse to adjourn the date by which you are scheduled to appear or respond to the motion (usually attributing his or her refusal to the client’s irritation with the “slow” pace of the case and disavowing any professional discourtesy on his or her part). The court may or may not assist you in obtaining the needed adjournment. When it does, its irritation with your abusive opponent in refusing to allow the adjournment without judicial intervention may ultimately aid your case.  


Where the court refuses to assist in obtaining the adjournment, your opponent’s short-notice tactic will force you to drop everything else in your office, taking telephone calls from no one except your client in that case, and to work until the wee hours of the morning to meet the absurdly short deadline that has been imposed on you. A computer home-to-office software link that allows you to access your office files from a home computer may restore some measure of sanity, albeit not much, to your life, permitting you to continue working on the opposing papers from your home.   


An effective way to oppose lengthy motion papers is to make your papers as brief as possible. The use of tables and charts may more effectively present your factual claims that excess verbiage, and may be more easily understood by a busy Court.  Legal arguments are more difficult to abbreviate. It is sometimes advisable to cut and paste sentences that you are not certain are needed into a separate document. If you do not miss them in the original document, they were clearly surplus language and should not be re-inserted. 


Often the abusive adversary will miscite legal authority. Brief argument to the contrary is, of course, necessary. A court, even the busy ones, may appreciate it if a copy of the contested legal authority is annexed to your papers so that it can peruse the contested authority itself. After your adversary’s first or second refusal to grant you an adjournment, you may feel the urge to show your opponent the same lack of courtesy that you have received from him or her.  Be forewarned that this time, the court may suddenly decide to get involved and permit the adjournment, in which case the prior history of your opponent’s abusive conduct may be overlooked: you will be the one who comes across as discourteous, not your opponent.  At the same time, there will come a point when the opponent has refused so many requests for an adjournment of different motions that you may decide not to give him or her the pleasure of rejecting your request anymore, and just to meet the short deadline under the circumstances described above.


All of this is personally exhausting for you, and financially exhausting for your client. The issue then reverts back to the one stated at the outset of this article: the client must have the financial means to withstand the abusive adversary in order to survive to the end of the case.  At the same time, so must his or her spouse. Occasionally, the opposing party runs out of money or the will to contest the case using this scorched earth policy. It is usually advisable to encourage your client to resume or continue (as the case may be) communications with his or her spouse, except in cases involving domestic violence, and if necessary, to blame both lawyers so that the parties themselves can arrive at mutually agreeable settlement terms.  


The abusive adversary’s tactics are usually not overlooked by the courts. Some attorneys or law firms have reputations among the judges (just as they have among members of the Bar) for practicing this way, and the courts are attuned to what to expect when that lawyer or law firm appears before them. Eventually the discourtesies, the paper barrages, the offensive letter-writing campaigns, the selective use of legal authority, and the general abuse of the legal process will lead a savvy court to mistrust anything the abusive adversary represents to the court, and may lead to an adverse decision against his or her client. 


There are mechanisms in place in nearly every state to penalize counsel and their clients for frivolous conduct, but most courts are reluctant to employ such severe measures. In dealing with the abusive adversary in front of the judge or trier of fact, the most difficult, but the most effective way to present your position is to be as courteous and cordial as possible, and to allow the abusive adversary simply to make a fool out of himself or herself. Their rage against you and your client will ultimately cause them to take a meritless or contradictory position. Thus, the abusive adversary can help you by losing his or her own case. 

The worst punishment that most abusive adversaries usually receive is the loss of their case, and a large account receivable unpaid by an unhappy client. However, this is a result that can be achieved only after both the opposing lawyer and his client have had the fortitude (physical, emotional and financial) to continue to soldier on in the face of such abusive conduct. The courts should take effective control over their calendars to prohibit such conduct. Some do, but more often, most do not.


The last trick that an abusive adversary can employ is to file a grievance against you with your local bar association or bar admission committee. Most such bar organizations are quick to see through a sham grievance as an effort to gain leverage in a pending action. It is, however, an upsetting experience and diverts your attention from litigating the case (which is the point, after all). Once again, the best way to address this situation is to  continue to be cordial, honest and straight-forward in your dealings with the bar organization, to cooperate fully with their requests, and to avoid disparaging the abusive adversary. With luck, the grievance procedure will end summarily in your favor; the difficulty lies in ignoring its pendency while you are in the midst of litigating your case.


Lest the ill-tempered among us think that some advantage may be gained by employing any of the tactics described in this article, one should consider the ultimate punishment described above: Assuming that the opposing party has the emotional and financial fortitude to withstand such shenanigans, and opposing counsel has the intelligence, patience, speed and good humor to utilize such tactics to his or her advantage, abusive litigation tactics almost invariably lead to the loss of the case, damage to one’s reputation among the Bar and Bench, and a large account receivable. 

​Handling The Tactics of Abusive Adversaries

This article was published in the November 2011 issue of The Matrimonial Strategist


Hell yeah, you want to clobber 'em, but you can't...

Terri L. Weiss

Author of Book Of Genesis and Client Relations