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No, They Really Donít Like Us

By Kenneth P. Nolan

We’re not so bad. At least not compared to mass murderers, horse thieves, and CEOs. But let’s be honest, some of us lawyers are not very nice people. And even though most I have met in the past 25 years of practice are decent, honest, caring individuals, I live in Brooklyn, where almost every day another judge has to resign or another prominent attorney does the perp walk.


You say it’s only a public relations problem, but deep in your heart you know it’s much more. Maybe it’s the work we do, maybe it’s the hired-gun thing, maybe it’s that we all want to be on the front cover of American Lawyer making bazillions each year, but maybe, probably, it’s plain old-fashioned greed. And all the good PR in the world won’t change the opinions of the riders on the R train when page 5 of the Daily


News continually reads “Lawyer indicted for stealing little old lady’s life savings.”


Yes, I know, we do good. We really and truly do—pro bono for criminals on Death Row, aiding battered women, helping the helpless. And we’re involved in the community—president of the neighborhood civic association, active in the parish, coach of tee ball and soccer, on the board of the local United Way, and all the while handling a full-time practice, which you know is more than just a job with the pressures of clients, bills to pay, judges to satisfy, and new business to generate.


It’s unfair, of course. The few rotten apples spoiling the ever-growing and delicious orchard. But it’s time to clean up our act a bit. Time to change our attitude, our behavior, our standards. Time to be courteous, reasonable, and charitable. Hey, I’m no dope. It won’t be easy and may never happen, but we know it has to get done. And the first small step is to admit a problem, realize that the public doesn’t trust us, doesn’t like us. It’s more than just another lame lawyer joke, it’s a general perception that we cut corners, we lie, we steal, and we’ll do anything for a quick buck. And perception, of course, is reality.


Can an attorney accused of a crime or of malpractice actually win a jury trial? Lawyers and insurers (yes, that’s how bad we are) just can’t win. Take the plea, settle the case, because you know you’re going down. Even with the Enrons, the Tycos, the stock option mumbo jumbo, the lavish corporate parties and the disappearing 401-Ks, our reputation is much worse than the corporate pirates.


By this time, you’re thinking, who is this mutt telling me I’m bad, that I have to change. Yeah, I hate those CLE programs on civility too, and I’m guilty, probably more than you. Yes, it will be very hard. We’re all guilty in some way. So are all the other occupations—CPAs, doctors, even priests. We’re all sinners, flawed people, trying to support a family, living in this “vale of tears.” Recent articles about the travel industry detail the worsening of the public’s manners. Passenger rudeness often escalates into physical violence. Vile language is common and public even among teenage girls (mine included). Cell phone abuse is so rampant on commuter trains that there is a need for designated quiet zones. And road rage is particularly threatening since, as George Carlin observed, there are only two categories of drivers: lunatics or idiots.


But our profession is a bit different. We’re lawyers, a label we should wear with pride, but too often we whisper it when we meet someone new at a cocktail party. “He’s a lawyer, but a good guy” is one introduction that I initially thought was nice.


We all know the difference between right and wrong but we still act like spoiled brats on occasion. And there’s no reason for it. We’re adults, at least most of us anyway. There will always be those who will steal, lie, and take bribes. Most will lose their licenses, disgrace themselves and their families, and spend time in some country club jail. A law degree does not come with a halo. The same temptations exist, the lure of the street remains whether you were kicked out of school in ninth grade or were editor-in-chief of the law review at Yale.


Yet certain behavior patterns can and should be changed. We should teach them in law schools, as part of our associate training, by our behavior in and out of the courtroom. We must encourage a change in attitude from pit bull litigation tactics to the golden retriever variety, with an occasional bark or two. Of course we learned this in first grade, but let’s just review them one more time, since we all know someone down the hall who has forgotten them.


Be Reasonable
In all aspects of our practice. Don’t you just hate the morons who won’t give you an extension to respond to some motion even when it makes no difference? Who serve papers on Friday at 6 pm, whose deposition strategy is to object, disrupt, and turn a three-hour depo into a three-day ordeal?


Whose condescending tone drips with “I’m a partner and you’re not” attitude? Usually these guys were the last to be chosen in touch football games, the ones who sat in the stands in high school as their basketball team was blown out, chanting at the other team, “Ho, ho, hey, hey, you’re gonna work for me some day.” Aggressive and obnoxious litigation is their chance to get even.


In small-town practice, everyone knows one another and courtesies abound since reputation travels quickly and trust is paramount. If you refuse a reasonable request for an adjournment or try to win based on some flimsy technicality, all know, including the judges, who usually take a dim view of such behavior. But in a large city, there’s a new face on the other side who wants to test you, who’s looking to impress the client, the senior partner, to make a name. And that leads to a chorus of no, no, no whenever you make a request.


Soon there’s motion practice over the silliest matters, mountains of paper accusing each other of the most vile activity—unnecessary, unproductive, and just plain stupid. Usually the judge puts a stop to such foolishness, but not until days are wasted, dance recitals missed, takeout pizza eaten cold. Bad feelings abound, client bills are enormous, and your position in the litigation hasn’t changed since you were retained.


In settlement negotiations, too much posturing is counterproductive. How many times have you been prepared to discuss resolution when the other side demands the gross national product of Norway?


Sure, you have to posture a bit, negotiation is a give-and-take, but realistic positions result in settlement. Be direct. If you can’t settle the case at this time or for a reasonable amount, tell the other side. I’ve seen too many attorneys rant that they’ll “try the case” if the million dollars isn’t offered “right now”—only back down time and again and settle for two bucks when the jury is selected.


“I’m a Lawyer”
Recently there was a serious and upsetting event at my eighth-grade daughter’s school, which called for a meeting of school administrators and parents. On two occasions, parents prefaced their remarks by proclaiming that they were lawyers and proceeded to speak in generally rude and condescending terms to such an extent that it affected the relationship with their children’s classmates. You are not superqualified to dispense wisdom on all topics simply because you passed the bar. Yes, a legal education is extremely valuable and I recommend it to all. This knowledge, along with our experience with people and the judicial system, makes us almost uniquely qualified to add intelligence and maturity to almost every situation. But drop the arrogance, the know-it-all attitude, the “if I don’t get my way, I’ll sue your butt” swagger.


Listen, keep your mouth shut for a while. Others, whether sanitation workers or moms, have insight as well. Be humble, you’re really not that smart or eloquent. Weigh the remarks of others and speak in measured tones. Command respect by the content of your words rather than the volume. It’s not that difficult, it just takes discipline and restraint. You’ll be surprised how much more you will be admired.


Admit Mistakes
Too often our advice muzzles our clients so that silence is perceived as indifference or callousness. This corporate position is often in response to the “don’t admit error, it can be used against you” philosophy. But it leads to anger, resentment, and trials.


The failure to acknowledge that a previous decision hurts your case is foolish. Tell the judge about it and then distinguish it if you can. Be upfront. Don’t pretend your case is bulletproof. It’s not. And don’t forget to tell your client the bad as well as good news. Eventually you have to, sooner is better, gently of course. Honesty as to weakness will save you heartache later, especially when the irate response will be, “You told me it was a slam-dunk. Whaddya mean we could lose!”


Of course we all screw up—whether it’s overlooking precedent, forgetting to provide timely documentation, whatever. Just face it, tell whomever, and get on with the case. Most times it’s not fatal and you know eventually your adversary will also err. Hide the hubris in your pocket.


Don’t Take Advantage
Sometimes, just sometimes, your adversary is a bit inexperienced. It’s easy to score a point or two. But young lawyers age, become wise, and don’t forget. So whether it’s a deposition or conference, remember when you were young and foolish. You never forget the small moments of kindness, like when I was being screamed at by a biased judge and the old lawyer slipped me a note to ask the judge to recuse herself.


Life is hard and too short. Bad manners, whether in court or on the street, are just not nice. And bad business.


Keywords: tips, public image, civility


Kenneth P. Nolan, former editor-in-chief of Litigation, is with the New York City law firm of Speiser, Krause, Nolan & Granito.


This article was excerpted from a longer one that appeared in Litigation, Volume 30, Number 4, Summer 2004.


 
  • June 8, 2011 – Great article! I can only hope a few of my adversaries read it and take it to heart.

 

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