It’s a lazy Sunday morning, so why not take a few moments to reflect on this week’s lessons.

Over the past few days, Mark Bennett, Gideon and I have hosted a moving crap game on the issue of criminal defense lawyer ethics.  To many, the heated debate would be uncomfortable if not intolerable because most people are conflict averse.  They can’t stand conflict.  They can’t deal with conflict.  They do anything in their power to stay as far away from conflict as they possible can.

I have seen (as no doubt everyone else reading this) people give up their rights, their interests and their happiness in order to let someone else have their way, so that they do not become embroiled in conflict.  One of my dearest friends, who is a very smart and savvy person otherwise, will find almost any excuse to not go to war.  One of his favorite lines is “pick your battles.”  Of course, he’s yet to find a battle that’s worth the fight.

The consequence of conflict aversion is that whoever takes the first strong position tends to win the day, no matter whether he’s right or wrong.  Oftentimes, this produces some very weird and wrong results, making the conflict averse cringe privately but publicly non-committal.  Their problem is that there is no way to challenge the decision without asserting themselves and thereby creating a conflict.  And they will do anything to make that no happen.

Another consequence, however, is the conflict averse people tend to be well-liked.  This makes perfect sense, as the rarely if ever offend anyone by challenging or disputing others.  People like that.  They like people who they perceive as agreeing with them.  They attribute good characteristics to people who they believe agree with them.  Or at least, they don’t attribute negative traits.  Ironically, we often find conflict averse people in positions of higher authority, less as a result of their positives than lack of negatives. 

A great criminal defense lawyer, as shown by this week’s discussions, is rarely conflict averse.  It is not, as many assume, that we invite conflict or thrive on conflict.  While a simplistic understanding would tend to make that assumption appear likely, it’s inaccurate.  Conflict is like a busman’s holiday, we engage in it professionally, so it brings us little enjoyment as an advocation.  Indeed, when young people tell me that they want to be a lawyer because their friends tell them they like to argue too much, I tell them that the best lawyers only argue because they must, not because they derive amusement from it.

We avoid conflict when we can.  We search for mutual ground, things we can agree upon.  We know that there is far more to be accomplished through the mutuality of interests than through disagreements.  But, there is also some bone in our heads that won’t let us shy away from a fight.  When pushed, we push back if we believe it matters. 

This characteristic of criminal defense lawyers is misunderstood by the conflict averse.  For them, conflict is visceral and emotional.  They see it as a form of anger, perhaps even hatred.  It evokes a sort of adrenalin rush that clouds their reason.  To the averse, conflict is a creature of personal hostility.

Amongst criminal defense lawyers, conflict need not involve any emotional component at all.  It is just as likely, if not more likely, to be a purely intellectual exercise.  We disagree.  We challenge.  We dispute.  We do not hate the people with whom we disagree.  We can argue and debate all day long, and tell the each other that they’re absolutely wrong, while still liking and respecting them without reservation.  We simply disagree.

The conflict averse cannot comprehend how this could be possible.  It’s just not the way they feel, and like all people, project their understanding of the nature of people onto others.  Because of this, people who are willing to address conflict head on tend to be more difficult for the conflict averse to accept.  They attribute hostile traits to us because they can’t understand how we could be otherwise.  We make them uncomfortable.  They perceive us as always ready for a fight, rather than will to “pick our battles.” And we do tend to make enemies because we are not perceived as being “agreeable” sorts.

Mark, Gid and I are all on the same team, despite our heated debate on the nuances of ethical lawyering.  Our philosophies are very similar.  Our concerns and beliefs bolster one another.  We argued hard, but bear each other no anger.  If we didn’t exist in this blawgosphere, we would have had a beer after the argument and still told each other they were wrong.  And we would all be fine with it.

So if you’re looking for a pleasant dinner companion, or someone for support or with whom to commiserate, find a risk averse person.  They will tell you what you want to hear, and you will get the positive feedback that you seek.  But if you find yourself to be under the gun, the enemy of the state, the accused, get someone who will not hesitate to take up arms for your cause.  Even a moment’s hesitation in the face of conflict can mean the difference between success and failure. 

The ability and willingness to look conflict square in the face, from a rational and strategic perspective, may not always make us the most comfortable people to be around, but clearly makes us the type of lawyers you want to represent you when your life is on the line.