Following the fascinating discussion on congeniality versus  “brilliance” in the Academy between Jeff Harrison and Jim Chen at MoneyLaw comes David Giacalone at f/k/a, reminding that there is no reason why one needs to sacrifice congeniality to assure brilliance.

A call came in shortly before reading David’s post from a potential client who sought new counsel on an ongoing case.  Why is always the first question.  The answer was that he didn’t like his lawyer.  He questioned what the lawyer was doing for him, and challenged the lawyer’s tactics.  But mostly, he didn’t like the lawyer.

After some discussion about his issues, two things became abundantly clear.  First, the lawyer’s representation was first rate.  The lawyer was not merely doing everything possible, but going above and beyond.  Second, the lawyer’s tactics were not merely competent, but exceptionally thoughtful and effective.  The client was receiving superlative representation.  And I told him so.

But, the potential client responded, “he’s not nice to me.”   And so we delved into that issue.  The client had certain expectations, ranging from his desire to have someone hold his hand and tell him he would be alright, to being involved in routine decision-making, which would require the client to climb a very steep learning curve.  But the primary problem was that the client was a screw-up when asked to do anything.  The client had a million excuses, but the fact was that he failed miserably to perform the few acts needed of him in the course of his defense, and the lawyer called him on it every time.  No, the client didn’t like his lawyer.

Was the lawyer a “jerk”?  Maybe.  But he was also doing an excellent job for his client.  I wondered how this fit into the discussion, and David’s point that competence and congeniality are not mutually exclusive. 

Within the Academy, congeniality amongst the faculty makes for a more pleasant atmosphere and, potentially, more productive team.  Certainly, lack of congeniality can create rancor that eats up time and effort that could better be spent in other ways.  But then, is the point of law school to have a happy faculty?  If the goal is generation of scholarship, as in Law Review articles and panel discussions, then a faculty that can work together is likely more important than having individual superstars.

On the other hand, if the point is teaching students to be lawyers, then what difference does it make if the faculty can share their thoughts and feelings in comfort.  This isn’t to suggest that an unpleasant working environment is a good thing, but that maintaining a pleasant one may not trump great teaching.

In the trenches, however, the situation differs.  While collegiality has its value in multi-defendant cases, it is a problematic consideration in the attorney-client relationship.  The only criterion that matters is effectiveness.  A defendant retains an attorney to fulfill a discrete function, to represent him in a criminal prosecution, the goal of which is to put him in prison to a long period of time.  It is preferable that the defendant despise his lawyer for the brief period of time he represents him until his case is concluded successfully, than like his lawyer very much for the twenty years he spends in prison.

Whether the lawyer and client become close personal friends after the case is over is not the point; The desire, and concomitant effort, to be liked by clients can, and often does, conflict with the duty to zealously represent.  It’s not that it must inherently conflict, but that when it does, and if often does, the lawyer must be prepared to burn his likability quotient in order to defend his client.  Too often, lawyers fail to make this hard choice because of their desire for future business from happy clients.  Happy is defined as clients who like the lawyer, as opposed to clients who won their case.

Toward the end of my telephone call with the potential client, I explained the facts of life.  His lawyer wasn’t mean or evil.  His lawyer was trying to save the defendant from himself, as lawyers are often forced to do.  I was sure that the lawyer took no pleasure from his stern rebukes to the client.  There was no pleasure to be had in any event.  Rather, the lawyer took his representation with the utmost seriousness, had dedicated enormous time and effort to provide the defendant with the best defense, with everything he had, and kept hitting brick walls constructed by the client himself.  The lawyer was doing his job.  That the client found it unpleasant was tough.

When things go swimmingly well in the course of representing a criminal defendant, it’s easy to be likable.  Few people chose to be dislikable; almost everyone prefers to have a pleasant atmosphere around them.  But when congeniality stands in the way of making the hard choices, it must give way.  Trench lawyers don’t have the luxury of a discussion over sherry about the personalities and sensibilities of their colleagues.  Shy away from our responsibility and a very happy client may spend the rest of his life in prison.  Trust me, he won’t be very happy for long.

The commercial said that it takes a tough man to make a tender chicken.  It’s true.  Be congenial whenever possible, but never let the desire to be like stand in the way of performing your duty.  Ultimately, every client appreciates the “jerk” lawyer who wins more than the “nice” lawyer who loses.