Not long ago, one of the lawyers involved in the transgender litigation twitted that he could not be civil to his opposing counsel. The reason was clear: his adversary denied his existence. The lawyer was transgender and the issue was about the rights of transgender people, and the opposing counsel argued against the position taken by the transgender lawyer. This was was white supremacy. This was transphobia. This was evil, and he could not, would not, be civil to someone who was evil.
Baby lawyers: if your mentor is a jackass to opposing counsel (or OC’s staff) for no good reason, find a new mentor yesterday.
I’ve had many strenuous disagreements with OC, and have snarked about a claim or two. But I’ve never found it hard to treat OC like a human being.
You’re not generally pitted in a personal battle against opposing counsel. You’re each doing a job on behalf of your clients. Sometimes that means telling OC that their claim is shit and you’re not backing down. That’s different than being a shithead to them on a personal level.
There was a time when we accepted the idea that you had a job to do and your adversary had a job to do, and it wasn’t a personal death match between lawyers. There have always been overly aggressive lawyers who lack the capacity to turn it down a few notches and instead behave offensively, or like a “jackass” as Ari puts it, for no good reason. They do it because they are a jackass, and it’s not a good reason.
But that doesn’t mean your option is to either be, or not be, a jerk, whatever that means.
There are good reasons to fight with your adversary. Sometimes you can gain an advantage for your client by rattling a lawyer. Other times, being overly civil comes at a cost to your client, which makes the lawyer come off like a nice guy while the client pays the price of your civility. To say one values civility over all is to ignore that we serve our clients, not our own sense of propriety or only as far as our personal comfort level allows.
Ari’s advice is, to seasoned eyes, entirely correct and, frankly, pedestrian. But that’s because we never understood our role as lawyers to be soldiers for the cause, and as should any good soldier, be prepared to die for the cause if necessary. Sure, General Patton, best to make the other poor schmuck die for his country, but that doesn’t always work out.
As we’ve seen young lawyers come into the profession not so much to be lawyers, but to be lawyers for a cause, does that justify the death of civility? If you adopt the vapid mantra that your opposing counsel is trying to erase your existence because they’re arguing against something that affects you personally, or something you really, really, believe in, does that make them evil and deserving of nothing but raw hatred?
Can a PD no longer have a beer with a prosecutor? Can a “public interest lawyer” share a kind word with a lawyer for a corporation? Can a lawyers for “survivors” agree to an adjournment requested by a lawyer for an accused rapist? Are the normal “courtesies” we provide our adversaries in court, provided they don’t compromise a client’s interest, now acquiescence to existential threats to the cause? Are we still advocates for our clients in the well, but just lawyers fulfilling the function demanded of us in an adversary system after the case is adjourned?
The answer might seem too obvious for words to some of us, but there is a strong trend among baby lawyers to view their adversaries as evil being bent on destroying lives, whether by denying them the rights we so fervently believe they deserve or putting them in prison for life plus cancer. Do we hate them because to do otherwise is to be complicit in their evil?
A lot of baby lawyers believe so, and they aren’t inclined to take the advice of seasoned lawyers who, to their fiery eyes, just don’t get it.
*Tuesday Talk rules apply.