The Bullying Litigator Trap

I’ve always hated bullying. Most of us do.

After the Post Office scandal, you might expect a little reflection among litigators about the dangers of heavy-handed tactics — especially when dealing with individuals who are unrepresented or in a weaker position. Yet, surprisingly, that lesson seems not to have sunk in.

Recently two friends, in entirely separate disputes — one a landlord-tenant issue, the other an employment case — showed me letters they had received from law firms. Each followed the same pattern: pages of allegations, dire warnings of consequences, and a list of extreme demands.

To be clear, this isn’t a swipe at litigators as a group. Many are thoughtful, balanced professionals but not all it seems. Drawing on my mediation training and its focus on outcomes, those letters made me wonder: what were the senders really hoping to achieve?

On paper, the letter-headed blunderbuss may promise tactical advantage — leverage, deterrence, perhaps a quick capitulation. In reality, it’s a strategy fraught with ethical and practical pitfalls. As the Solicitors Regulation Authority reminds us:

“Litigation will often involve putting a case against another party in strong terms. However, breaches of our standards can arise from oppressive behaviour and tactics, including:

• threatening litigation where there is no proper legal basis

• making exaggerated claims of adverse consequences

• sending excessively legalistic letters aimed at intimidating unrepresented parties

• using abusive, intimidating or aggressive language.”

Even leaving the regulator aside, are clients really best served by this approach?

In both of these cases, those opening volleys arrived without warning. Battle lines were drawn before anyone spoke. Positions hardened instantly. The tone of drama weakened, rather than strengthened, the merits of the underlying case. If your argument is good, why not simply make it, clearly and respectfully?

And if the aim was to trigger a “flight” response, it failed. Once the initial panic subsided, both recipients became more determined. A fight had been offered — and a fight was what they intended to deliver.

Mediation training teaches us to look beyond positions to the needs and intentions underneath. That’s made more difficult when the positions are inflated and unreasonable. Each side ends up defending their pride rather than solving the problem.

I’d love to say I provided some brilliant riposte that sent the aggressors scurrying away but since I’m no longer a practicing solicitor , my involvement was limited to moral support — helping my friends feel less isolated and signposting them to proper advice. Both matters have now landed in the hands of sensible firms but the litigtion process begins, blow for blow — long, expensive and emotionally draining.

If only they had spoken at the outset about what really mattered to each of them. Most disputes aren’t won by the loudest voice, but resolved when someone pauses long enough to listen.

My training has shown me

how much time, cost and dignity can be saved when people step away from the bullying reflex and toward dialogue. It’s rarely the easiest route — but it’s almost always the better one.