War has broken out in the practical blawgosphere.  Naturally, I have to get involved.  The Texas Tornado, Houston criminal defense lawyer Mark Bennett, has taken issue with  Shawn Matlock (formerly Young Shawn, but has since earned his wings) of the Fort Worth Matlocks.  The dispute is whether it’s better to have an empathetic criminal defense lawyer or a ruthless one.

Young Shawn Matlock, Fort Worth “Republican” criminal defense lawyer attorney, responds to my position that empathy makes us better lawyers and in doing so asks the following:

But what about ruthless? Ruthless to get exactly what you want. Ruthless to not settle for less. Ruthless to take no prisoners, no matter what the cost to others. Ruthless to the point that everything is just collateral damage.

Now, I assume that Young Shawn intends this at least in part as rhetorical puffery for the paying customers. First, “ruthless” doesn’t guarantee you “exactly what you want”; “ruthless” doesn’t mean “not settling for less”, it means “not having compassion” (maybe Shawn here means “relentless”?).

Even Austin criminal defense lawyer and uber-blawger Jamie Spenser, usually the voice of reason in these internecine Texas horse versus cattle disputes, jumps into the fray asking whether a client should hire a jerk as a lawyer.  There’s nothing like asking a loaded question, right?

Before leaping off the cliff, there’s one predicate detail that must be clarified.  Are lawyers in Texas all one-dimensional?  Why does this argument, built largely on a framework of rhetorical disagreement as to the definition of empathetic, ruthless or jerky, assume that a good lawyer has only one bullet in his six-shooter? 

Bennett’s point, that a criminal defense lawyer who lacks empathy toward others, particularly his client, cannot  function at his best is most definitely true.  While we need not “agree” with out clients’ conduct, we need to appreciate that they are human beings, with inherent failings, who are deserving of our help. 

On the other hand, that does not mean that we must be “enablers” of unlawful conduct, irresponsibility or stupidity.  No, it is not okay to murder people.  It’s not okay to miss court because you had a rough night.  Like a wayward child, we have to feel compassion toward others while recognizing our role in helping clients to become better people than when they first walked in our door.

But that doesn’t mean that we only work in one gear.  There are times when speaking quietly to the prosecutor will be the best tact for accomplishing the goals that will best serve the client.  There are times when getting a little louder is necessary.  There are times when we need to scream at them. 

Bennett rips Matlock for his choice of the word “ruthless”, equating the ruthless lawyer with the sociopath.  That’s a bit extreme, and likely far different than what Matlock intended.  Jamie takes issue with lawyers who promote themselves as “aggressive”, arguing that “competitive” is a better choice.  I don’t see much point in arguing over semantics when the issue is substance.

Matlock’s description of the “ruthless” lawyer is quite harsh:

But what about ruthless? Ruthless to get exactly what you want. Ruthless to not settle for less. Ruthless to take no prisoners, no matter what the cost to others. Ruthless to the point that everything is just collateral damage.

This sounds like the guy who suborns perjury, conceals evidence, lies on his taxes and cheats on his wife.  To ask the question using this definition of ruthless is to invite strong disapproval.  But to the client who wants so desperately to win, the idea of a lawyer with a “take no prisoners” persona probably sounds pretty good.  The gist is that the lawyer will do everything necessary to represent his client.  Many clients want that lawyer.

But why must clients settle for the one dimensional lawyer?  Why can’t the lawyer be empathetic toward his clients, yet aggressive in his representation?  Why can’t the lawyer have a bullet in each chamber of his six-shooter to cover the full panoply of situations, ready to be cooperative when appropriate, ruthless when necessary and everything in between in response to the needs of the case and situation?

I like the word aggressive.  It doesn’t mean acting like a jerk to me, though it can reflect hostile behavior.  But it can also mean vigorous, proactive and bold.  I also like the words “tenacious” and “resolute” in the performance of our duty.  

Descriptions I do not like are “passive”, “foolish” or “complacent”.  These are not words that would ever be used to describe Mark, Shawn or Jamie.  While there may be some differences in how “forgiving” Shawn Matlock may feel toward his clients as compared to Mark Bennett, I have never known a client who would willingly pass up a win for some warm and fuzzy time with his lawyer. 

Yes, most clients want hand-holding from their attorney, as they traverse the cold, scary landscape of a criminal prosecution.  They’re scared and need reassurance, though this too presents some quandaries since what they really want is a guarantee that everything is going to turn out alright.  We can’t give them this guarantee up front, unless we’re prepared to lie through our teeth.  Some lawyers do just that.  Anything for a buck.

But ultimately, clients want their lawyer to be whatever kind of lawyer it takes to obtain the best possible results.  As far as I’m concerned, that means we have to be empathetic, aggressive, competitive, ruthless lawyers.  As needed.