Dan Hull at What About Clients? thinks a lot of angry thoughts. I know because he tells me about some of them. But he knows that when it comes to representing a client, there’s no place for personal vitriol. It’s pure self-indulgence. Unlike the Slackoisie, who are of the view that their thoughts, clear or angry, demand an airing, real men know better.
Sure, there are times when anger can be effectively use to register the depth of a problem, or to shock a judge out of complacency, but that’s the strategic use of anger. As with anything, anger can be part of an arsenal of weapons available to the lawyer, but of all the bullets in our gun, it’s the one that must be aimed with the greatest precision. Few can do so effectively, and a miss can be devastating.
For this reason, Dan adopted the exceptionally sound advise to “always draft angry briefs, but never file them.” Feel that anger swell up inside you when the other side is particularly idiotic? We all do. Let it out. The catharsis will do you good. Deep breath. Now get down to the work that your client needs of you, persuading he decision-maker to reach the right decision. That’s not about your anger, but about your client’s needs.
From whence does Dan glean this pithy advice? None other than Max Kennerly at his blog, Litigation and Trial.
But a brief is no place to question the intellect or motives of opposing counsel. Get mad, then get over it.
As James Fallows puts it: Always write angry letters to your enemies. Never mail them.
Always draft angry briefs. Never file them.
Yup, that would be the same Max Kennerly whose vitriolic comments here have caused me to ban him. Maybe this is where Max gets his catharsis so he’s not so angry elsewhere. Interesting, no?
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The problem with letting your anger out is that you feel better when you let your anger out, a person can get used to that. Anger isn’t something that you can get rid of, you don’t have such and such pints of anger in you and drafting an angry email doesn’t remove such and such pints of anger from your system. It just means you feel a bit better.
For example, if an unruly teen is told to punch a pillow when he starts to feel mad then the teen ends up connecting feeling mad, punching something and then feeling better. That’s fine as long as he’s always got a pillow handy.
We all get angry. Letting it out has it’s purpose, and for most of us, writing the words we think or feel may be more than sufficient to release the anger. Then we get back to work doing what we’re supposed to do in the first place. It’s important to remember that we’re here to represent clients, not to vent our personal feelings.
Thanks, Scott for noticing.
True, I have confided in you with my darkest thoughts, and enriched your life beyond your capacity to ever repay me.
Fine subject. But to be honest, I have blown this rule a few times. But less and less as I get older. There are some adverse counsel, e.g., who are so hopelessly dishonest at their core and Eddie Haskell-like in their approach to jurists that even clients want you to just “say it”. I doubt that these lawyers think of themselves this way. They merely think that misleading both parties and forums in commercial disputes is “good practice”. Some older lawyer taught them that. It’s “cultural” and very ingrained by the time you meet them. The have been operating in a different universe.
Judges only get glimpses. They are misled a lot–and by people who have no respect for lawyering at any level. (Generally, these are the same people who cry “unprofessional” when caught with their pants down–and ironically they are generally from smaller towns, and rarely from big cities on the coasts. Go figure.)
The urge is strong to call a turd a turd.
But the utility and success/failure of “saying it” is all in the details. The best default position? Carve it out of the brief, Jack.
Ahh. My brilliant and underpaid secretary (who doubles as a wife) has saved my career more than once. It usually goes like this; “Uhhhh, Tom? I like your turn of phrase here. It’s funny and really insulting but you probably want to take that out.”