THE BLOG
11/04/2013 03:31 pm ET | Updated Jan 23, 2014

Aggressive Lawyering Is Counter-Productive

On October 28, 2013, I had the pleasure of being interviewed by Rosalind Sedacca, CCT for her "Child-Centered Divorce Expert Series for Parents." We covered a great deal of information in that interview and I ended with the following take-away: "People constantly seek out lawyers who are 'pit bulls', 'sharks', 'very aggressive' and other such things. However, there is a difference between being aggressive and being assertive. A lawyer can be assertive without being aggressive and obtain superior results for their clients regardless of the process involved. Contrary to popular belief, aggressive lawyering has consistently been found to be counter-productive. As an undergraduate student majoring in Economics/Business at UCLA, I learned about a concept known as supply and demand. Essentially, the greater the public's demand for a given good or service, the larger the supply. Due to the false belief that aggressive lawyers are superior, aggressive lawyers have been in high demand. Unfortunately, aggressive lawyers benefit nobody other than the lawyers themselves. If clients stopped requesting and otherwise seeking out destructive lawyers who are making a tremendous amount of money doing nothing but wreaking havoc and destroying families among other things, the supply of such lawyers would decrease. By the same token, if clients began seeking out assertive lawyers who were not aggressive, the supply of such lawyers would increase and everyone would benefit, except for the destructive lawyers."

I first wrote about this topic for my Psychology and Family Law column in the March/April 2010 edition of the San Gabriel Valley Psychological Association's bimonthly newsletter. Since the audience for that newsletter is basically limited to the members of the San Gabriel Valley Psychological Association, I think it is time that this topic reached a broader audience.

On May 26, 2013, Stephan Futeral started the following Discussion in the Family Law Professionals LinkedIn group: "Does being 'aggressive' make you an effective lawyer?" This was one of the most active discussions I have ever seen on LinkedIn. There were a total of 166 comments made in this discussion over a three month period, ending on August 26, 2013.

Mr. Futeral attached a link to an article he had written titled "Is An 'Aggressive' Lawyer An 'Effective' Lawyer?" Unfortunately, that article is no longer accessible for free, but it can be viewed for a fee. It seems that Mr. Futeral is a wiser businessman than I am, considering that I have always made all of my writings accessible to anyone at no charge. Nevertheless, the purpose of my writing efforts has always been to educate the public and I would be limiting that goal significantly if I charged people a fee to view my articles. As has been said before, "The needs of the many, outweigh the needs of the few ... or the one." Nevertheless, fortunately, J. Benjamin Stevens used an excerpt from that article for a blog of his own. The excerpt is as follows:

"Unfortunately, lawyers throughout the country are not exactly revered for their congenial nature or their civility toward each other. To make matters worse, TV, movies, and dramatic fiction play to an audience that expects lawyers to shout at the witness during cross-examination - 'YOU CAN'T HANDLE THE TRUTH!' The unfortunate 'truth' is that even in the real world, many lawyers market themselves as being 'aggressive' or are endorsed by other lawyers as such.

If you look up the word 'aggressive,' you will find definitions that include 'ready or likely to attack or confront,' 'pursuing one's aims and interests forcefully, sometimes unduly so,' or 'characterized by or tending toward unprovoked offensives or attacks.' Being 'aggressive' is not the same thing as being 'zealous.' 'Zeal' is defined as 'great energy or enthusiasm in the pursuit of a cause or an objective.' Zealousness is an admirable attribute; aggressiveness is not. Here is why:

1. Aggressive Lawyers Are On The 'Short-List' - Judges do not care for 'aggressive' lawyers. Ask any judge, and they will tell you that they are worn out from baby-sitting lawyers who cannot get along with one another, who quibble over the most mundane aspects of their case, who accuse other lawyers of misdeeds, who complain about imagined slights, who hold hard-and-fast to deadlines without accommodation or courtesy, and the list goes on. Lawyers who place themselves on a judge's 'short list' of intolerable lawyers are doing a great disservice to their clients. Regrettably, many of the lawyers who place themselves on the 'short-list' are either oblivious to (or 'willfully dense' to) how their attitude negatively impacts upon the court's scheduling of matters, the court's receptiveness to the lawyer's concerns ('Cry Wolf Syndrome') or even, at times, the court's rulings.

2. Aggressive Lawyers Get As Good As They Give - During my career, I have let other lawyers out of default or extended firm deadlines as a professional courtesy. I can hear the aggressive lawyers' comment now - 'You gave up your client's advantage in exchange for courtesy!' Not so. I can unequivocally state that in those cases, the outcome was positive for the clients and, in some cases, made more positive by acting professionally. Of course, there will always be those parties, or their lawyers, who precipitate a hard-line approach to the case. However, perhaps a better practice is to set a positive tone from the beginning before you come out swinging the day the client walks into your door. If you set a negative, aggressive tone from the outset, then do not be shocked when opposing counsel does not return your phone calls, does not grant you any extensions you request, does not work with you to complete discovery, etc. In all, what goes around does, indeed, come around. Hopefully, in all your years of practice, you will never miss a deadline or make a mistake. However, if that day should come, it would be best to have a reputation as being respected and a 'lawyer's lawyer' than to be the attorney to whom everyone else is looking to dish out a little 'payback.'

3. Good Lawyers Don't Just 'Try' Cases; Good Lawyers Try to 'Resolve' Cases - Before I hop down off of my soapbox, there is one last point to be made. In the end, 'scorched earth' policies and aggressive behaviors do not benefit our clients (except in the movies). Family law attorneys can probably attest to this fact the most. Aggressive behaviors run up legal fees, destroy any real chance of cooperation between parents, and leave children as the victims of litigation. The same is true for civil litigation. Sparing with opposing counsel or writing threatening 'paper tiger' letters or emails is, in a word, useless. Whether you disagree with opposing counsel, or you just don't like their politics, venting your frustrations, lobbing insults or threats, or engaging similar aggressive behaviors does not change the facts or the law of your case. Agree to disagree, spar like professionals, and kept your reputation as a 'zealous' and a 'professional' lawyer intact. In the end, you will earn the admiration of both the bench and the bar. Moreover, your clients will applaud you for your success and not your rancor. In the end, as we say here in the South, 'you catch more flies with honey than with vinegar.'"

In any event, I was the first to comment in that discussion and said, "So True! I have been saying this in different ways for a very long time and have written about it on several occasions since 2010." Lee Thompson stated, "Assertive is good, aggressive doesn't work all that well. Many years ago I took a more aggressive stance on things. Not anymore. When I run into that kind of attorney, maybe I become a little more assertive but remain calm. That seems to drive that type more nuts." Ann E. Johnston commented that, "Assertive and aggressive are very different things. Dealing with an assertive can be good for the client. Dealing with an aggressive attorney is just plain annoying." Sarah C H Phillips quoted the following from Mr. Futeral's article: "'Aggressive behaviors run up legal fees, destroy any real chance of cooperation between parents, and leave children as the victims of litigation.'" She then went on to state, "I couldn't agree more. Unfortunately I do still encounter lawyers who seem to believe that aggressive behaviors are what is expected of them. It's never helpful to have your client crying on the phone because of the latest obnoxious letter from the other side that does nothing to progress the case and everything to alienate the parties from each other further."

Jerry Reiss' comment clearly defined the distinction between aggression and assertion. His comment was as follows: "Aggressiveness is not a quality associated with the best lawyers. Its intent is solely bellicose and intended to dominate for the sole sake of winning. It is done solely to impress the client. Animals are aggressive particularly when they are hungry and seek prey for their appetite. Assertive is boldness based on confidence. You wouldn't call an animal assertive. So I do agree with Ann Johnston. But I would throw out one more word: passionate. When we're passionate about something we want to win but it is based on principles that we believe that we are right and so we become assertive. When I first wrote how much I won I was criticized as an expert. But I never wanted to lend my name to a cause that should fail and I am very selective about what issues I fight to win. I do not consider myself aggressive. I consider myself assertive driven by passion."

Hugh Starnes, Senior Judge at State of Florida commented as follows: "This is a significant discussion! Thanks for those who initiated it and have continued the dialogue. I think there is a significant moral and legal issue involved. As has already been pointed out, research clearly indicates that continued conflict between parents harms children and places them at risk for optimum development into productive citizens, workers and relationship partners. If this is so, doesn't an attorney have a moral duty to avoid harm to the children, if it is avoidable?

The legal side of this is, doesn't the attorney have a professional and ethical obligation to be knowledgeable about the processes and skills necessary to mitigate conflict and steer the parties toward non-adversarial negotiation, where possible? It is important to change the local professional culture to one where the bulk of the professionals share a commitment to practice in a non-adversarial manner as a first option and to stick with that option until all cooperative resources have been exhausted. This must be a multi-disciplinary effort, and usually starts with leadership from the bench and a core of professionals who work in the family law area."

J Kim Wright
contributed as follows: "I thought this clip by Professor Larry Krieger might be appropriate to the original topic. It starts with a bit about positive psychology and integrates it with whether aggressiveness is effective for lawyers. (Hint, it is not, but this has research to back it up.) It is about 6 minutes total." Gary Direnfeld then entered the discussion by saying, "Aggressive? The first lawyer's letter often sets the tone and case direction. Clients should choose wisely. The discussion ended with the following comment from David Karp: I, too, have written about this recently."

I would be remiss if I neglected to mention that some of those involved in the discussion do believe otherwise. For example, Eric K. Johnson said, "This thread's question, 'Does being 'aggressive' make you an effective lawyer?' is a rhetorical question. Of course being aggressive can make one an effective lawyer. We've all witnessed it. If it weren't the case, lawyers who were otherwise not aggressive would not adopt aggressive behaviors. Aggressive lawyers do not always succeed due to aggressiveness, but that can be said of any lawyer behavior. Aggressive lawyers 'succeed' in certain ways. As with any strength (and let's not fool ourselves, aggressiveness is and requires strength of a certain kind), aggressiveness brings with it certain weakness. Too much aggression and you're an ***hole. Too little aggression and you're a waste of your client's money and trust. It's that simple." Please note, however, that in his own profile, Eric admits that he "struggles with getting along with others who disagree with [him]." Terence Shanley commented as follows: "Forceful advocacy of a substantive legal issue makes you an effective lawyer. Just being aggressive without a substantive legal position just makes you annoying." My response was "Terrence, I guess that depends upon how one defines 'forceful' and 'zealous.' My pleadings and articles have always been very persuasive, but not what some people consider 'forceful' or 'zealous.' Nevertheless, they have always served me well."

For those who still believe that aggressive lawyering is good lawyering, I would like to share with you the following email I received from a judicial officer for my contributions to that discussion: "You are so far ahead of most of the Bar, thank you for your great and insightful comments." For those interested in reading those comments and the overall discussion on this topic, I would recommend that you view the actual LinkedIn discussion.

The real problem was raised by Ann E. Johnston, when she said, "But, therein lies the problem. The client. Those clients who think that attorneys being loud and aggressive are better lawyers are the first ones to argue that the lawyer was no good." In other words, it all comes down to the economic realities of supply and demand.