Practicing family law has mental and emotional pitfalls that include dealing with an opposing attorney who uses "Rambo" tactics. We all have different definitions of the actions that define a Rambo lawyer, but most lawyers would agree that they have had opposing counsel who are Rambo-like: rude, demanding, accusatory, pushy, loud, obnoxious, bullying, and the exact opposite of a civil, courteous and professional attorney.
The core problem with these attorneys is that they personalize issues that are actually issues in the client's life, not the attorney's life. But they act like their own survival is at stake!
Rambo lawyers threaten CR 11 sanctions and use discovery to harass the other party. They are aggressive beyond what is necessary to professionally represent the best interests of their clients, taking into account the issues involved and the assets of the parties.
Washington Professional Standards
The Washington State Bar Association Creed of Professionalism reminds attorneys to be civil and courteous, and guided by the fundamental tenets of integrity and fairness. However, the Rules of Professional Conduct do not specifically prohibit yelling, lack of civility and extremely aggressive behavior in the defense or presentation of a case.
The Preamble to the RPCs does require attorneys to be competent, prompt and diligent.1 The RPCs also state that a lawyer should use the law's procedures only for legitimate purposes and not to harass or intimidate others.2
A lawyer is obligated to conscientiously and ardently protect and pursue a client's legitimate interests, within the bounds of the law.3 However, this same rule also states that an attorney is required to maintain a professional, courteous and civil attitude toward all persons involved in the legal system.4
The RPCs do specify some behaviors that are misconduct: engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.5 Usually, Rambo lawyers know not to cross the line into these areas, but sometimes their behavior can be so unethical under the RPCs that it should be brought to the attention of a judicial officer or the bar.
The Washington State Bar Ethics Line can be used for assistance in how, within the requirements of the RPCs, one can and should respond to Rambo tactics.6 To report unethical conduct of a Rambo lawyer, one would contact the WSBA disciplinary counsel.7
What if This Happens in Front of a Client?
During a court proceeding with a Rambo opposing counsel, the courteous lawyer's client may ask why the other attorney is yelling and objecting to the courteous attorney's statements. They may think you are not "up to" dealing with the other, more aggressive lawyer and therefore they are losing. One can point out to their client that the other attorney is yelling, but to wait and see how the judicial officer rules. Often, Rambo tactics result in rulings in favor of the attorney who was not yelling and interrupting.
We can also let our clients know that the judge, not us, is responsible for running his or her courtroom and it is the judge's or a commissioner's responsibility to admonish the Rambo lawyer during a courtroom proceeding. One method of dealing with yelling and interrupting by the other attorney is to pause, look at the judge and let him or her step in to the fray.
It is never necessary or in your client's best interest to yell back at or interrupt the other attorney. This demeans the entire judicial process and gives you, in the end, a poor reputation. It is hard to do, but it is best to "take the high road," look at the judicial officer instead of staring at and watching the antics of Rambo. Allow the judge or commissioner to control the hearing. Most seasoned judicial officers will not allow this kind of behavior to continue.
If you are feeling angry or "flooded" with emotion at a court hearing or in trial, pause before responding. Take a deep breath, and then remember why you are there and stick to the facts and issues of the case. The court will appreciate the professionalism.
Some Ideas for Dealing with Rambo during Trial
Of course, you can assist the court's efforts to restrain the unprofessional conduct by responding to a Rambo lawyer's questioning of a witness in the courtroom with proper objections including these:
- Question is confusing, misleading, ambiguous, vague, unintelligible, prejudicial or a waste of time - ER 403
- Repetitive question/asked and answered - ER 611(a)
- Argumentative - ER 402, 611(a)
- Calls for an irrelevant/immaterial answer - ER 401, 402
- Witness incompetent to answer - ER 601, 602
- Calls for a privileged answer - ER 501 (attorney-client, RCW 5.60.060(2); clergy-penitent, RCW 5.60.060(3); interpreter in privileged communication, RCW 2.42.160)
- Calls for a legal conclusion from a non-expert - ER 701
- Calls for an opinion by an incompetent witness - ER 701, 702
- Calls for a narrative answer - ER 611(a)
- Calls for a hearsay answer - ER 801–805
- Leading (on direct only, allowed on cross examination) - ER 611(c)
- Assumes facts not in evidence - ER 611(a)
- Calls for speculation - ER 701
- Compound - ER 611(a)
- Improper characterization - ER 611(a)
- Misstates evidence/misquotes the witness - ER 611(a)
- Cumulative - ER 611(a)
If the Rambo lawyer starts the proceedings with a blast in his or her opening statement, one can object as follows: opinion of counsel, mention of inadmissible evidence, mention of evidence that cannot be proved at trial, argumentative - ER 611(a).
If the Rambo lawyer's closing argument is offensive, one can object that it misstates the evidence, misstates the law or is the counsel's personal opinion - ER 401, 402, 611(a).
Dealing with Rambo takes specific consideration of timing during the court process and procedure. Of course, it is most economical to schedule several motions at one time if there are numerous issues to be decided. One should schedule motions and discovery deadlines weeks before the discovery cutoff so there is time for a follow-up motion if needed.
The only recourse of the civilized attorney involved in a case with a Rambo opposing attorney is to respond with professionalism, courtesy and defensive tactics. The best practice for dealing with a Rambo is to organize, organize and organize.
All correspondence should be in writing because Rambo attorneys often misstate what you have said. If there is an oral conversation, follow up with a written letter or email documenting the conversation and agreements.
Try to resolve as many issues as possible prior to court action and document this so the court can see the efforts you made to resolve issues. In a dissolution, for example, send over a list of your client's desired personal property weeks before the court proceeding. Follow up so that you do not have to argue over crystal or coasters at court.
For more information on the topic, one can refer to the chapter on civility in the newly released 2012 WSBA Family Law Deskbook.8
In the first of the four "Rambo" movies, Rambo tells the sheriff, while putting his knife to his throat: "In town you're the law. Out here it's me."9
Court proceedings are not decided by brute strength and willpower. The judicial officer has to apply the law to the facts of the case. Make sure your factual presentation is clear and that you have presented the law that supports your client's position.
If you have remained focused on the facts and the law, more than likely the court will understand your client's position on the facts with more clarity than the case presented by Rambo, which is riddled with unnecessary, distracting antics. "Yo."
1 RPC 4.
2 RPC 5.
3 RPC 9.
5 RPC 8.4(c).
6 Washington State Bar Ethics Line to consult with professional responsibility counsel: 206-727-8284 or 800-945-WSBA, ext. 8284.
7 WSBA Office of Disciplinary Counsel: 206-727-8207.
8 Washington Deskbook on Family Law, 2nd ed., 2012 Cumulative Supplement, Chapter 6, "Enhancing civility and maintaining privacy for your clients," edited by Carol Bailey-Medwell.
9 "First Blood" (1982).