Belligerent Lawyers
A theme that appears in some legal advertisements is that the lawyer is tough or belligerent. For example, the blog Above the Law wrote about three different lawyers who each called themselves “The Hammer.” And I assume this theme is meant to address potential clients who may believe that the best kind of lawyer is forceful, combative, and obstinate. Potential clients, for example, like Roger Ailes, who had once said he wanted a “street fighter” as a lawyer instead of “white-shoe marshmallows.”
Lawyers that meet that description exist. But in my experience, however, lawyers who adopt a belligerent persona do not do the best job for their clients. Instead, I believe that this kind of aggressive behavior makes litigation unpleasant, more expensive, and less likely to sway a judge or settle on favorable terms.
Why should you read this post about lawyers who try to appear tough?
You’re looking for a litigator to represent you and you want to know whether to pick the loudest.
You saw Marriage Story and assumed that Ray Liotta’s character was the best lawyer in it.
Get lost! I’m don’t need to explain myself to you.
Image credit: https://en.wikipedia.org/wiki/Aggression#/media/File:Warthogs_(Phacochoerus_africanus)_young_males_eyeballing.jpg
To start, let me be clear about the kind of tough persona I am describing. Clients should want an advocate who zealously guards their interests and works hard to advance their case. But some people think this kind of advocate is likely to be loud, or rude, or obstinate, or vengeful, or to take extreme positions. They may see a mean face on a billboard and think that this is the kind of bulldog they want in their corner. In this post, I argue that this kind of lawyer often does not get the best results.
This Kind of Aggression Makes Litigation Less Pleasant
Litigation is already unpleasant. It is incredibly expensive. It requires a lot of time answering questions and digging up documents. It requires addressing false allegations and questions about your honesty and integrity. No one enjoys the process.
Being overly aggressive takes an already unpleasant process and makes it worse. The principal effect of rude remarks, course language, bravado, and inflexibility is to make opposing counsel unhappy and to annoy the witnesses and professionals who work on a case.
The people who employ this kind of aggressive behavior do it with the intent of pressuring people to get what they want. But while this behavior annoys others, I almost never see it advance the aggressor’s position. Lawyers do not drop their cases or make concessions because the other side is mean. And clients tend to respond to this kind of aggression by being more indignant themselves.
This Kind of Aggression Makes Litigation More Expensive
In an earlier post, I wrote about why it makes sense to extend courtesies to adversaries: a healthy working relationship makes a lawsuit go more smoothly and efficiently. That efficiency makes it less expensive for everyone.
Moreover, litigators often file sanctions motions against lawyers who are rude or overly aggressive. And a lack of flexibility usually results in lawyers asking judges for relief that the lawyer won’t just consent to. These additional motions cost money and the client has to pay for them. And the judge may order the overly aggressive lawyer to pay for the costs of the other lawyer’s motion.
This Kind of Aggression Fails to Sway Judges or Yield Favorable Settlements
In law, the side that is loud and shouting is rarely the one that is winning. Instead, there is an old saying that if the law is on your side, you argue the law; if the facts are on your side, you argue the facts; but if neither is on your side, you pound the table. Thus, pounding the table is a sign that the lawyer has neither the facts nor the law on her side.
It has also been my experience that lawyers who are overly aggressive tend to be easily distracted from the law and from important details. This happens for a few reasons:
Being aggressive takes a lot of energy, which could be better spent on legal and factual analysis.
The personality type that makes certain people aggressive often does not align with a more thoughtful and careful personality type.
Lawyers who are very aggressive are so confident in their position that they do not study potential opposing arguments and evidence closely to prepare themselves for the opposition.
Whatever the exact reason, many aggressive litigators come unprepared to arguments. They have a surface-level knowledge of the case and, when challenged, repeat themselves loudly and with confusion that they haven’t already won. They also draft papers that are full of bluster but that may not persuade an adversary or judge because they haven’t fully engaged with the other side’s points.
This kind of bluster fails to impress judges, who see hundreds or thousands of cases a year. They rarely believe a lawyer in a commercial dispute when they claim their case is extraordinary when they see hundreds of more serious cases every year; no judge will be seriously outraged at a discovery delay in your breach of contract case if she just sentenced a man to life in prison earlier that day. Because of their experience, judges are usually good at seeing through belligerence and looking for the merits of the case underneath. This is especially true since lawyers cannot be aggressive towards the judge, who would punish them for impolite conduct. And so, while lawyers may attack their adversaries in an aggressive manner, judges often pay little attention to those comments. In my experience, I have never seen a judge respond favorably to a lawyer’s bluster and I have frequently seen judges roll their eyes at lawyers who have tried that approach.
Bluster also fails to work with opposing counsel. Most cases end in settlement. And so a lawyer has to get the other side to agree to a deal. But bullying opposing counsel will rarely make opposing counsel feel like the deal they are being pushed is a good one. If anything, the fact that a lawyer needs to act tough to push a deal likely communicates to opposing counsel that the deal is bad and should be rejected.
Moreover, counsel that can’t get along and work together respectfully are less likely to have productive conversations, or even speak at all. I personally will end phone calls with adversaries who are rude, which prevents them from any goal they were hoping to accomplish on the call. And without productive conversations, settlement is unlikely and an expensive litigation is likely to continue.