Lawyers Should Stop Gaslighting Each Other

Adversaries can often smell weakness and might make unreasonable demands while suggesting the other lawyer is crazy for calling them out.

‘There are FOUR lights!’

Lawyers have an ethical obligation to diligently represent their clients, which might include advancing arguments with which they do not totally agree. Pretty much everyone understands that all parties deserve a legal defense and that the advocacy of a lawyer does not mean that a lawyer sees no insufficiency in their position or that they absolutely believe the points they are advancing. However, lawyers have a tendency to get so caught up in their advocacy that they fail to see past their positions and actively gaslight their adversaries. While the presentation of arguments before a factfinder often requires theatrics and the projection of adamant belief, lawyers should try not to gaslight each other in order to maintain credibility and civility in discussions.

Over the course of my career, I have had conversations with probably hundreds of adversaries on litigation and transactional matters. Normally, adversaries will see the deficiencies in their own arguments and express empathy for their adversary’s position. Of course, sometimes matters are so clear cut that there is no way that a lawyer can see that their adversary may have a point since there can be no varying perspectives about an issue that are reasonable. However, for the most part, lawyers are reasonable and do not act like they are “high on their own supply” when presenting arguments to other attorneys.

However, far too often, lawyers gaslight each other as a method of advocacy. Lawyers may present bizarre and untrue statements of the law or facts and then suggest that the adversary is crazy for believing a contrary position. For instance, one time I was embroiled in a simple breach of contract dispute with an adversary, and there was no provision in the contract about attorneys’ fees. Moreover, there was no statute that was implicated in the case that discussed attorneys’ fees. Of course, the traditional “American rule” is that each party is responsible for their own attorneys’ fees unless a contractual provision, statute, or another authority authorizes the payment of attorneys’ fees since paying the other side’s attorneys’ fees might disincentivize litigation.

My adversary related that in addition to breach of contract damages he would recover attorneys’ fees and costs in our case. I asked my adversary how he expected to recover attorneys’ fees since there was no contractual provision or statute that authorized this relief, and he related that there was a well-developed line of cases that when a party breaches a contract in “bad faith” attorneys’ fees were recoverable. I conveyed that I had never heard of such authority, and my adversary was insistent that I was wrong and the authority existed.

I conducted some research, and this line of cases did not exist. I saw some cases in which attorneys’ fees might be recoverable in disputes with insurance carriers, but our case had nothing to do with this authority. When I confronted my adversary on the lack of authority buttressing his arguments, he immediately pivoted to other discussion points and abandoned his argument. However, he was caught brazenly gaslighting me, and that adversary lost a great deal of credibility in my eyes.

Another common way that attorneys gaslight other lawyers is to claim that they have far more experience in certain matters and that practices are commonly accepted in a certain line of work. It can be daunting for lawyers to handle new types of matters since this often takes an attorney beyond their comfort zone. Adversaries can often smell this weakness and might make demands or suggest arrangements that do not appear to be reasonable. However, the adversary may claim it is commonplace based on their supposed wealth of experience on an issue.

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For instance, earlier in my career, I represented a client who sued a number of defendants, which is not uncommon. One of the attorneys for one of the defendants asked that I discontinue the case against his client. In exchange, the defendant would remain subject to the jurisdiction of the court, and if the circumstances of the case changed, my client could add the defendant back into the case. However, I had very good reason to include this defendant in the lawsuit, including causes of action that were meritorious and that the defendant was unlikely to get dismissed.

Nevertheless, the attorney insisted that the arrangement where a defendant like his client was cut loose from a case was commonplace in lieu of the ability to add claims against this party later on. The attorney told me he had tons of experience convincing lawyers to do this and tried to gaslight me into thinking that this bizarre arrangement was normal, and that I was being unreasonable for refusing to oblige. However, I could find absolutely no authority countenancing the arrangement that this lawyer suggested, and it was frustrating that the lawyer was gaslighting me into thinking the arrangement was acceptable as a method of advocacy among lawyers.

All told, you cannot fault lawyers for being zealous advocates for their clients, and sometimes attorneys try to gaslight each other in order to obtain an advantage during discussions. However, such tactics can harm professional relationships, and attorneys should stick to other strategies to advocate on behalf of their clients.


Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

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