Of Lawyers, Jerks and Knee-Jerks (Update)

For reasons that elude me, Huffington Post Women published a post by Jeena Cho explaining that we should stop training lawyers to be jerks.  She begins with the obligatory anecdote.

When I was a young lawyer, I was invited to sit in on a deposition with one of the managing partners at the firm. This was my first deposition, and one of my first experiences coming face to face with an adversary. When I got to the conference room, I asked opposing counsel and his client if they wanted anything to drink and if they were comfortable. I don’t recall if they asked for anything, but what I do remember is what happened after the deposition. The managing lawyer pulled me aside and told me never to do that again. It was not my job to offer water or make the opposing side comfortable and in fact, it was my job to do the opposite. To make them as uncomfortable as possible.

She took this “mentoring advice” to heart, but explains that being the “most aggressive lawyer in the room” didn’t work for her.  Her own mentoring advice is to lead with kindness:

We can debate whether such tactics work or not. However, to me, it doesn’t matter. Even if not offering water did somehow give us a slight edge, I still believe I should have offered it. I became a lawyer to pursue justice and to help people. This means that I have to maintain my humanity.

While this may well reflect Jeena’s world view, it suggests that the problem isn’t being a jerk or being kind, but being in the wrong profession. Her focus is on herself, who she wants to be and what she hopes to accomplish. She wants to be a great humanitarian, which is a wonderful aspiration. But that’s not what lawyers do.

Keith Lee explains why Jeena’s advice is misguided.

The thing is, being a jerk all the time doesn’t make you a jerk, it makes you an asshole. It’s just not necessary. All attorneys should lead with civility and courtesy when initially interacting with opposing counsel. And they should strive to maintain that civility as best they can. But ultimately, the practice of law is not about you or your feelings. The practice of law is about what’s best for your client.

In contrast to Jeena, Keith makes the point that lawyers aren’t jerks, or aren’t kind, because that’s what makes them happy or fulfilled, but because it serves the needs of their client.

Being a jerk doesn’t need to be the only available tool in your toolkit. Yet to completely abandon aggressiveness and assertiveness would be to do a disservice to your clients. Rather, attorneys need to be educated and aware of what kinds of tools (kindness, civility, respect, hostility) are available to them. And law schools churning out attorneys who only have one tool (being a jerk) is just another item in the laundry list of problems wrong with them. Attorneys need to be educated in all the tools available to them: empathy, assertiveness, decorum, aggression, affinity, and enmity.

And just importantly, when to use them.

Where Jeena is right, to the extent she’s right, is where she advises “Don’t wear other people’s suits.”  This circles back to Keith’s point that new lawyers not only need to have a variety of personas in their repertoire, but to know what they can pull off and when they should try.  What works for one person under one set of circumstances often fails miserably for another.  They can’t pull it off effectively, and rather than further their client’s interests, they fail miserably where another lawyer would have succeeded spectacularly.

This stuff can’t be taught.  It would be great if it could, but it can’t.  With experience, a lawyer will come to recognize which arrows in their quiver work for them and which don’t, but not every lawyer can be a tough guy or sweetheart effectively.

And, as Keith correctly notes, it’s all about being effective on behalf of the client, regardless of Jeena’s admonition that it’s all about the lawyer being true to herself.

What makes this discussion worthy of repeating here is the simplistic approach to the profession being promulgated, as if there is “an answer” to how to be, how to behave, and that the answer is something that can be told, explained, taught in the course of a blog post, magically turning new lawyers into happy yet effective lawyering machines.

I suspect Jeena’s issue is one that a great many new lawyers share, that they really aren’t suited to the work of representing clients and sublimating their own interests and concerns for the benefit of someone else.  They just can’t embrace the idea that a lawyer’s job is to put his client’s interest first.

At the same time, the fear that being too effective might upset someone often pushes young lawyers to temper their effectiveness, to mitigate their speech and conduct.

So no, don’t actually be a jerk all the time. Be civil and courteous as much as you can because it is the correct and human thing to do. But also be wary of falling too far across the spectrum towards kindness and end up doing a disservice towards your clients. It’s a fine line to walk, and it’s a good that we have attorneys like Jeena to remind us of it.

Keith is friends with Jeena, and saw no reason to attack her post too strongly and turn a friend into an enemy. So in concluding, he threw her a bone with some praise.  Of course, it contradicts his point, renders his post pointless and is facial nonsense.  Jeena didn’t remind anyone to structure behaviors so as not to do a disservice towards clients, but to not be a jerk because that’s not how she wants to be personally and therefore believes it to be intrinsically better.

In the course of this post, I’ve managed to be critical of both Jeena and Keith.  There’s a good chance both will see me as a jerk for doing so, which may well be true from their perspectives. But if so, it’s because I’ve made a deliberate decision to be critical of Jeena’s knee-jerk advice, and Keith’s mitigated response. That’s the point. Whether jerk or not, know what you’re doing and do so for a reason.

Update:  My buddy, Mark Bennett (who I know is a friend because he’s the first to smack me when he thinks I’m wrong), writes that I’ve taken a hill I can’t hold here.

“Jerk” is never used as a word of praise. Why? Because not being a jerk is intrinsically better than being a jerk. The world would be a better place if nobody was a jerk. Not being a jerk makes the lives of those around you easier, it lowers your blood pressure, and it satisfies the categorical imperative.

But by making the patently false claim that not being a jerk is not intrinsically superior to being a jerk, Greenfield loses the plot.

Have I? I suspect Mark gets caught up in the semantics, of the pejorative use of the word “jerk.”  Yes, the word “jerk” carries negative connotations, but then, that’s the reason Jeena Cho used it. She argued against it, and hence, used the word “jerk” to describe it.

I’m not quite so sensitive. The words means no more nor less than the underlying conduct. If that means being firm and uncooperative, and if that’s what you think will benefit your client, it doesn’t become less worthy of doing because someone characterized your conduct in a pejorative way.  I find myself disagreeing with prosecutors fairly regularly. To them, that might make me a jerk. To my clients, it makes me a lawyer.

As for me, I really don’t care what word is used. It’s just semantics. I won’t be goaded into changing my persona so that others only use nice words to describe me. I’m quite confident Bennett wouldn’t either.

22 thoughts on “Of Lawyers, Jerks and Knee-Jerks (Update)

  1. John Burgess

    Missing from Jeena’s narrative is any exploration of the partner’s experience with either the person being deposed and/or the other attorney. Choice of tools is also influenced by what they’re to be called into service to perform. Some things need hammering while for others, a buffing rag might suffice.

    1. SHG Post author

      There is a laundry list of things missing from Jeena’s narrative, not the least of which is that the “managing lawyer” was her superior and, for better or worse, was her boss. As such, her responsibility was to follow his instruction, whether it met with her approval or not.

    1. SHG Post author

      Nothing is intrinsically anything. Everything a lawyer does is situational. We have the capacity to assess situations constantly and fluidly, and adjust our tactics accordingly. No lawyer should do any less.

      Most of the time, not being a jerk is a far more effective means of addressing a situation. Fortuitously, it’s also the way most of us would personally prefer to act.

      1. Not Jim Ardis

        The only thing that is intrinsically better is that which benefits the client while still remaining ethical. Everything else is just noise.

  2. Charles Platt

    As a one-time client of a criminal attorney, I applaud your post. Clients don’t necessarily want a defense attorney who is civilized–unless that will help the case. Clients don’t necessarily want a defense attorney who is a rabid uncouth monster–unless THAT will help the case. I mean, it’s the case that matters, isn’t it? What ELSE could matter but getting me the best defense–which it so happened I was paying for?

    I remember the awful feeling of seeing documents headed “State of Arizona vs. Platt.” Yikes, I thought–what chance does Platt have? He has the whole state of Arizona against him! That doesn’t sound like a fair fight! Clearly I needed all the assistance that I could get, of any kind, because this was a serious business threatening my liberty and bank account. If I had seen my attorney offering milk and cookies to the prosecutor, just because it’s the niiice thing to do, I would have wanted another attorney.

    That said, on a very different afternoon that I spent with William Kuntsler, where I was putting up bail for one of his clients, I had to prove the bail money was untainted, to a very scary woman who was in charge of prosecuting sex crimes in the City of New York. Bill marched into her office, ignored her proferred hand, and grabbed her in a bear hug, chuckling and calling her his “sweetie.” Afterward he confided in me, “We think it makes it just a little harder for them to get mad at us when we do something they don’t like in the courtroom.” She was a monster, so far as he was concerned, but if hugging her could make her resolve weeken even a fraction, he’d hug her. Whatever it takes–for the client.

    He had it right.

      1. B. Paige

        Really? No Really? Never met a Lawyer that ever put his client first. I would like his/her number.


        1. SHG Post author

          No good lawyer wants to represent someone who would leave such an idiotic comment. Nobody wants to represent a flaming nutjob. Maybe that’s your problem?

    1. Anne Krone

      Good thing the scary woman was not on a college campus, she could go to a counselor and discover that she was raped.

  3. RAFIV

    I appreciate this is anecdotal, but I find most newly minted Millennial attorneys rude and foolishly aggressive. Many simply cannot process the fact that opposing counsel and the court are not in perpetual awe of their brilliance and legal acumen. Many act indigently when their arguments are rejected and eschew basic professional courtesies. Most surprisingly, many cannot understand that the needs of the court and client override all but the most pressing of complications. In short, many lack proportionality, that ability to take direction and, most importantly, client focus.

    Both authors seem to suffer from these shortcomings. It appears that they have never been taught that the needs of the client are paramount and this sometimes requires we step on toes and punch back twice as hard. But this is a lesson that can only be learned through humility and sometimes humiliation. Sadly, both of these are emotions that most Millennials were shielded from their whole lives.

    1. SHG Post author

      The idea that there is “a way” lawyers should be, regardless of which end of the spectrum they’re on, is disturbing. You raise a corollary, that young lawyers can be needlessly and pointlessly offensive because they aren’t treated with their millennial expectation of respect for their mad skilz. It’s just as foolish to always be a jerk as to never be a jerk.

      But this seems to all stem from their not realizing what lawyers do. Their entire lives are all about them, and then they become lawyers and can’t shift from the “all about me” to the “all about the client” mindset.

  4. Eric L. Mayer

    Have you ever had jerk chicken?

    Done right, it is actually a very tasty dish, but it can be a bit spicy for some.

  5. Anne Krone

    Her mentor was absolutely right, but she misunderstood the lesson. Offering refreshments is a social signal (even if you don’t mean it to be) that you feel yourself to be lower in the pecking order than those to whom you offer. IANAL but I do fence and participate in other combat sports and many a bout is won or lost before any actual fighting begins in the initial “head game” while each side is assessing the others relative experience, skill, and strength. Now if you can trick your opponent into thinking you are less skillful than you are and take advantage of his resulting overconfidence that’s one thing, but that’s obviously NOT what Miss newbie lawyer was doing.

    1. SHG Post author

      Wait. You fence? What weapon. We need to talk.

      What is interesting about Jeena’s example is that it can be used both ways, to relax an adversary, to put them at ease, to signal weakness so that they let their guard down. There’s all sorts of reasons to do things, even if just to be nice to feel out how they will respond. But whatever it is, do it purposefully with the client in mind.

      1. Anne Krone

        Foil, epee, sabre. But my passion is foil: killing blow or go home, no pansy hand shots. I even have a dueling scar above my left eye….something something about always wearing your mask.

        1. SHG Post author

          I fenced foil and epee in college, and my son fenced epee (he was much better than I was). He fenced one competition in foil, earned a D, but only to screw with other foils.

          1. Anne Krone

            I haven’t competed in years–I suffered a dislocated hip which makes it hard even after it healed to recover from a lunge–, but my husband and I still conduct all our marital spats on the piste. It scared the neighbors for a while, but eventually they got used to us poking each other with fancy rebar in our funny white suits 😉

      2. Anne Krone

        Awesomeness with the son. I imagine your house and my house look similar with the swords and sword parts scattered everywhere. My oldest daughter was our fencer. However my oldest son and youngest daughter decided they wanted to do kendo instead, so add various armor kits and shinai to the mix.

  6. Keith Lee

    This is you being a jerk? I read this and thought it was one of the milder rebukes I’ve received from you.

    I think I was off my game a bit with this post (incorrectly noting Brian as curmudgeon, as opposed to a crank as you noted earlier). The final paragraph in which I talk about Jeena’s post was meant to indicate that I think it is valuable to point out that lawyers (like Jeena) are having the conversation about having more options (civility, etc.) in their toolbox than merely aggression and bluster.

    While this is self-evident to many (such as yourself), it is also revelatory to many lawyers – as Jeena indicated in her post. Only after a number of years of practice did they realize that they didn’t have “to wear other people’s suits.” And it was only after they met other lawyers who were taking the time to speak out about kindness and civility in their practice. (There was lengthy discussion on this in the walled garden of Facebook where Jeena also shared her post.)

    That some number of lawyers are still astonished that it is possible to practice law without only being in “jerk mode” is why I mentioned in my post that it wasn’t a bad thing that some lawyers are attempting to sway the pendulum more towards civility and away from aggression. Civility in the profession is a good thing. If Jeena wants to initiate that conversation, good for her. But, and as was the reason I wrote the article, I wanted to indicate that pendulum can swing too far if not careful. And burn the damn pendulum to the ground if that is what is best for the client.

    So no, Jeena’s post was not perfect and your criticism of it (and mine) is obviously fair. But I also think it’s not a bad thing to have these sorts of conversations in public where people can benefit from seeing the exchange of ideas. Next time I’ll attempt to make my point more clear.

    1. SHG Post author

      Perhaps part of where this conversation goes awry is the pendulum analogy. We shouldn’t be swinging (get it) at all, but doing as our responsibility dictates we do. The whole civility/aggressiveness discussion is based on a misguided concept, that it’s about us rather than about representing our clients.

      We don’t pick civility or jerkiness at random or because it makes us happy. We do what works best for our client. If that turns out to be civility, then civility it is. All the time, every time, until it isn’t, at which point we stop being civility. No pendulum needed.

      One of my friends used to send me a lot of stuff about mindfulness and civility, and her note on every post she sent my way was “what about the clients?” Lawyers should behave in whatever fashion best suits our clients, a point almost universally missed by those who are focused on mindfulness and civility.

      Now, as far as lawyers behaving badly when their conduct has nothing to do with clients, that is a different story altogether, but that isn’t about them as lawyers, but about them as people. A lot of people behave poorly as people, lawyers included. If lawyers are just generally ill-mannered people (which may be, but I can’t say), that’s a different issue.

      And I apologize if this post was too mild. I’ll try harder next time. As for your being kind to Jeena, if you guys are friends, she ought to be able to take some disagreement without her feelings being hurt. That’s what friends are for.

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