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Is Aggressiveness a Good Quality for Lawyers?

May 11, 2013

A competent, respectable and respectful attorney (I will call him “the Mensch”) complained to me the other day in a mediation that the other lawyer (“the Meanie”) was overly aggressive.

Every contact between the two, I was told, was combative and resulted in no agreement even as to the smallest professional courtesies.

They could not even sit in the same room with one another without bristling.

The matter did not settle that day, and may not for awhile (if at all) because of the apparent hostility, intransigence, and brazen behavior of the Meanie, as perceived by the Mensch.  Maybe that’s not such a good thing for the Meanie’s client, or for the Mensch’s, if no settlement resulted.

On the other hand, the Meanie might actually achieve a better result for his client ultimately, perhaps through an advantageous settlement closer to trial, by continuing to be difficult.  The other side might cave in just to be done with the Meanie.  Maybe that IS a good thing for the Meanie’s client.

If the Mensch does not recognize that, to some degree, he must adapt to the Meanie’s approach to the litigation, the Mensch’s client may be left behind.

I see this as a sub-text of the tension between cooperative and competitive approaches to negotiation, and there is much written on the subject of these differing approaches.

Today, however, I am more interested in thinking about the Mensch’s complaint – about the Meanie’s aggressiveness – and whether lawyers themselves perceive aggressiveness to be a valuable quality and whether intrinsically it is so for litigation attorneys.

So I googled “aggressive attorney” and came up with many results.  Mostly, the words were on web sites of attorneys promoting themselves and the results they get.

I even found a site for the American Association of Aggressive Attorneys (AAAA).  The AAAA argues, “weak-kneed lawyers are a bane for any client.”  See, http://www.aggressiveattorneys.org/ .  It’s a very interesting advertisement.

So it appears that at least some lawyers perceive aggressiveness to be a good quality in their work.

But, while doing my online “research” for this piece, I also googled definitions for “aggressive” and came up with these, and others:

∙    “characterized by or tending toward unprovoked offensives, attacks, invasions, or the like; militantly forward or menacing: aggressive acts against a neighboring country.” (http://dictionary.reference.com/browse/aggressive)

∙    “Inclined to behave in an actively hostile fashion” (http://www.thefreedictionary.com/aggressive).

So maybe aggressiveness is not intrinsically such a good quality for lawyers after all.

Actually, aggressiveness is decried by many lawyers, I think:

At a meeting among attorneys that I attended recently, the discussion of “civil litigation” came up, as if it were an oxymoron.

One attendee said that in smaller legal communities, whether geographic (as in a suburban or rural county) or by practice type (e.g, the criminal prosecutor/defense bar), the lawyers must be congenial with one another, as they will come into contact with each other more frequently, and cannot be seen as difficult to work with.

By contrast, another added that, in a large litigation community such as in Los Angeles (where I conduct my mediation practice), some think that the scorched earth approach to litigation works just fine, and the negative interpersonal effect doesn’t matter so much, because it is not so likely that the two lawyers facing one another in one lawsuit will come into contact again, soon or at all, in another lawsuit.

Even the court has weighed in on this:

With the recent budget-driven cutbacks in services at the Los Angeles Superior Court (fewer courtrooms, fewer employees, longer delays for hearings and so forth), the court has urged the lawyers to try to be more congenial and to cooperate with one another in the prosecution/defense of their civil actions, so that fewer motions will need to be filed and heard by the court.

Personally I am in favor of congeniality and cooperation among lawyers, not only in court but in mediation as well.

I do not advocate bad behavior in mediation.  I don’t think it helps much, ever.

But as to mediation, I will say that people must continue to expect differing styles and adapt their own approaches under the circumstances.

With the dynamic shift in Los Angeles’ litigation world due to the court system’s budget-driven collapse, we will see if the lawyers, even the aggressive ones, will improve the experience and outcome of litigation by cooperating more with one another and by tempering their approaches.

And, as they say, “the jury is still out” as to whether “aggressiveness” is a good quality intrinsically for litigation lawyers, or if attorneys generally will continue to denounce aggressiveness while engaging in it nevertheless.

***

David I. Karp is a full time mediator of real estate and business disputes serving all of Southern California.  His web site address is http://karpmediation.com

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From → Law, Mediation

One Comment
  1. David, I have written about this issue in the past. In fact, my most recent article on topic was published by the Huffington Post on May 10, 2013 and is titled “The Personality and Philosophy of Attorneys Impact the Results”. (http://www.huffingtonpost.com/mark-baer/the-personality-and-philo_b_3246689.html?utm_hp_ref=divorce&ir=Divorce).

    On April 24, 2013, I attended the Family Law Section meeting for the Beverly Hills Bar Association. The topic was “Preparing for Trial – The Trials and Tribulations.” I figured a room full of warriors could use a peacemaker.

    Let me share with you what I posted on the social media while attending that event.

    “The biggest complaint that the family judges keep making over and over again is that neither attorneys nor their experts ‘meet and confer’ as required under the Family Law Code. Is it any wonder that these attorneys go to court so often? How can you resolve a dispute outside of court, when you don’t even ‘meet and confer?’ Pathetic!!!!!

    By the way, these complaints are being made by family law judges at the Beverly Hills Bar Association’s Family Law Section meeting.

    I will say it once again – you can only give what you have and teach what you know. If you don’t know anything about constructive communication, how can you resolve a dispute outside of court? When will people learn? There is a reason why certain lawyers appear in court regularly!

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