Is our lawyer agressive enough?


Only time today for a quick link to an article by Mark Herrmann, Chief Counsel (Litigation) at Aon Risk Services.

Several times, certainly enough to stick in my memory, people coming in to engage our services say they want a rottweiler (it’s nearly always a rottweiler, with the occasional dash of pitt-bull thrown in) – someone who will agressively interact with the other side which, in the client’s common perception, is populated with nasty characters that have deliberately caused them harm.

In my experience, this type of client does NOT like it if you are friendly with opposing counsel, and I can understand that to a point.  But some don’t even like a display of common courtesy.

Mark Hermann points out what most lawyers know, which is that softly softly catchee monkee works a lot better than being a rottweiler….but the rottweiler is what, all too often, clients demand, in an expectation that sometimes seems to be based on watching too many television law shows where the aggressive shouty lawyer succeeds in making the witness or evil corporation rep break down and concede to the forces of good.

Unfortunately, in real life it doesn’t happen like that or, at least, I’ve never seen it if it does.  Mark’s view:

What’s my reaction? On the one hand, we can’t ignore perceptions. If a lawyer is so low-key that he doesn’t inspire confidence, then that is a legitimate concern. If I don’t trust the lawyer who’ll represent me at trial to defend me during a vigorous cross-examination, then that’s a real issue; we shouldn’t hire that lawyer. Confidence matters.

On the other hand, if the concern is simply that the litigator is not a blowhard — the lawyer speaks quietly and intelligently during business meetings, where there’s no need for bluster — then I have a very different reaction. In fact, I have three reactions:

First, having a larger-than-life personality does not mean that you’re a good litigator. Loud is not necessarily bad; it just isn’t a substitute for good. Some of the finest litigators I’ve known have been low-key people who would quietly and methodically unearth great legal theories and disembowel witnesses on cross. No muss, no fuss — just victory.

Second, people often have different personalities in different situations. The college professor who’s so commanding in a classroom may be a very different person when he’s pulled over for speeding at midnight on Friday night. The partner who berates associates in private may be charmingly smooth when he’s chatting with the CEO of the big client. The person who’s calm in a conference room may be entirely able to deliver a hot blast by telephone (or in front of a jury) when it’s necessary. Don’t judge people after you’ve observed only one of the many roles they play.

Third, being a blowhard can in fact undermine a lawyer’s effectiveness. As a client, I really don’t need to spend money on tangential discovery disputes caused by lawyers with too much testosterone being unable to get along. Being civilized can reduce costs and help speed a case to resolution.

Generally, if you’re in a room with a shouty lawyer on the other side, you just form the view that they’re an idiot, and don’t have a case.  This can drastically act to the disadvantage of the shouty lawyer’s client – who, quite unwittingly, may be sitting there thinking their advocate is doing a fine job.

Their lawyer is giving them what their client wants, but not necessarily what their client needs.  A quiet but persistant, tenacious and methodical lawyer will do a better job everytime, without causing such antagonism that the opposing side has to overcome significant dislike before settling.

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About Ivan McIntosh

I am a partner of Carter Atmore Law...residing in City Road just off the busy thoroughfare of Symonds Street, Auckland, New Zealand....where we are specialist business & property development lawyers, working for both local and international clients. Proud husband to Joanna, and dad to two sons. Passionate rugby supporter. Email: imcintosh@calaw.co.nz Ph: 64 9 921 5026
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