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.