September 15, 2026

Litigation Doesn’t Mean Table Pounding

By Emily Poler

Labor Day has come and gone, commercials for Starbucks Pumpkin Spice Latté (blech) are flooding the streaming platforms, and all those fresh-faced (for now) first-year associate attorneys are marching off to their new lives. Which puts me in mind of my early days in the legal arena, and specifically, the first trial I ever participated in. Well really, it was an arbitration hearing in a conference room, not a courtroom, but close enough to the real thing for young me. I was a super junior lawyer, a year or so out of law school, and it was just me and one of my firm’s partners representing our side. A lot of what went down was well above my pay grade, but I could work a photocopier and put papers into folders, so that was pretty much my role. Nonetheless, there were a bunch of things that day that have stuck with me. 

Our client’s only witness was a woman. As the hearing went on, every time my colleague was concerned about what she might say or how well she was prepared to testify on a particular topic, he would send me and her to the ladies room. Why? Because we were literally the only two people using it so there was absolutely zero risk of anyone overhearing our potentially privileged conversations. Cone of silence! I suppose nowadays some might cry sexism (“they made you act like girls at a nightclub going to fix your makeup together!”), but it made sense at the time and worked perfectly.

More to the point of this post, however, I was  amazed by the way my colleague just absolutely badgered the other side’s lead witness. At one moment the witness even swiveled his chair, turning his back for a temporary respite from the brutal cross-examination. (The arbitrator in the room exercised absolutely no control over the proceedings; he definitely dozed more than once during the hearing.) The other side must have had counsel, but I remember absolutely nothing about him or her and have no recollection of any effort to try to stop our side’s super aggressive questioning. 

At the time, I was shocked at my colleague’s performance (and it was most assuredly a performance). I also remember thinking that, particularly as a young woman, there was absolutely no way in a million years I would ever be able to treat a witness like that. 

Such lawyerly steamrolling comes to mind as a result of some recent dealings I’ve had with opposing counsel. In one case, the attorney was insistent that we have discussions on the phone, with the clients joining. I agreed to it — once. On that first call it immediately became clear that what opposing counsel really wanted was to go around me and speak directly to my client. That call ended VERY quickly. Since then, all calls have been without clients and I’ve been very careful to send him notes in follow-up emails. My reward? He has made it clear he thinks I’m out of my mind for refusing to have our clients talk to him, and for daring to memorialize our discussions in writing. Fine, he can be as aggressive as he likes, such behavior has no effect on me anymore. I’m doing what I know is right for my clients and myself.

Flipping the situation, in another case the opposing firm has, for better or worse, put the proceedings in the hands of a very, VERY junior lawyer without much of a clue. Now, I could be an absolute jerk to her because she would have no idea of how to respond. An easy win and power move for me, right? But obviously I’m not going to beat her down because that’s not my game. I know I can get what I need for my client without torturing opposing counsel, nor do I need to fuel my ego by performing like a gladiator — a need that seems to drive too many in my profession.

All these thoughts boil down to the simple tenet that just because your opposing counsel is doing something in a particular way, you don’t have to do it that way. Nor should a client expect — or want — their attorney to be overly antagonistic when it does nothing to advance the cause (even if it can make for entertaining theater).