We’ve all encountered what I refer to as the “Rambo” Litigator. John Rambo, of course, was the slightly psychotic, yet heroic, war veteran played by Sylvester Stallone in a series of action movies in the 1980s. Rambo generally responded to provocation with overwhelming force. In the climax of the first movie, John Rambo shoots up a small town and then walks the barren streets as the fires of destruction light up the empty sky.
Like the movie character, the Rambo Litigator tends to respond to challenges with a “slash and burn” mentality. Rambo Litigators wreck widespread havoc on the court system in hopes that opposing parties and counsel, as well as the Court, will become more concerned with their own safety than with the proper administration of justice. Rambo Litigators may file ethical and judicial complaints or even lawsuits against opposing counsel and presiding judges.
Like John Rambo, these litigators feel more suited to guerrilla warfare than civilized advocacy. Particularly where Rambo’s case has large warts, he would rather focus the court on attorney behavior than on the merits of his case. Since the majority of attorneys don’t resort to such tactics, Rambo may indeed gain some advantage by making constant accusations against opposing counsel.
While nothing can make dealing with Rambo pleasant, the following suggestions can help neutralize the advantage Rambo hopes to gain by setting fire to your case:
- Choose Your Battle Field. Federal courts, with more manpower and resources, are less likely to be overwhelmed by voluminous motion practice than state courts. Rambo likes to start fires to divert the resources of the court and opposing counsel from tasks which might otherwise be dedicated to substantive issues. In my experience, federal courts tend to put those fires out with more dispatch than state courts.
- Choose Your Battles. Don’t be unnecessarily contentious in discovery. Rambo loves to bicker about discovery issues. It keeps you from addressing the merits. If you just can’t give Rambo what he wants, get a discovery master appointed. Even in most state courts, a discovery master can be appointed to resolve discovery disputes more quickly. This prevents Rambo from dragging you before the presiding judge to air every petty discovery grievance.
- Keep Your Powder Dry. Don’t make counter-accusations lightly. It’s tempting to criticize Rambo’s own behavior when he’s constantly criticizing yours. However, don’t make counter-accusations out of frustration and don’t call Rambo on the carpet for trifling matters. Wait until Rambo has clearly crossed the line before you call his behavior to the attention of the court. If you pull the trigger too early, the court is likely to conclude that the lawyers simply “don’t get along. ”
- Take The High Ground. Even if you’ve convinced the court that Rambo has misbehaved, don’t continue to harp on his behavior. Given the grief he’s probably caused you, it’s tempting to try to rub his nose in his shortcomings. Don’t do it. The court will remember Rambo’s misdeeds without your constant reminder. Once Rambo has been admonished by the court, take the opportunity to focus the court immediately on the merits of your case. There will never be a better opportunity.
*article courtesy of Curtis Tideman of Lathrop & Gage, LC, firstname.lastname@example.org.