Soliciting opinions of lawyers mostly, but anyone can contribute: I’m using the character Bobby Donnell from THE PRACTICE as my example of a defense lawyer who will do almost anything to defend his client, legal, ethically dubious, creative, whatever. Bobby’s the extreme example of a lawyer who pushes the envelope in defense of his client, and it’s obviously the dramatic device that kept that show running.
What I’m wondering is, what’s the opposite? What does a defense lawyer do that’s unusually timid, ineffective, unaggressive, in his client’s behalf? I’m not talking about laying down on the job, or anything that leads to “ineffective counsel” appeals, but what’s the sort of thing that is NOT super-aggressive BD style defending, and not even normal, average whitebread lawyering, but very conservative, unspectacular, well-inside-the-lines stuff that Bobby Donnell is the antithesis of?
As a followup, is this style of defense counseling necessarily less effective than the tactics a super-aggressive defense lawyer will pull? Does aggressive, creative defending= good defending?
One Crown I know has a great deal of respect for one defence lawyer in particular, who would phone the Crown up to discuss a case before they started the trial. That lawyer would usually say something like, “You’ve got six key points to prove. I’m willing to concede 1,2, and 4, but I’m going to oppose you on 3 and 5. I’m not sure yet what our position will be on point 6 - depends on how some of the testimony will come out.”
Invariably, the points that this lawyer was conceding were the ones where the Crown’s case was strongest, and the ones he identified as the ones he would fight hard on were the weakest points in the Crown’s case.
Saved everyone time and effort; saved his client money by not wasting time on issues that wouldn’t help the defence; no lying in the weeds; no ethical issues. It also showed a defence lawyer with a great deal of confidence and experience, having zeroed in on the weakest points and spending his efforts on them.
The Crown told me that it was a very effective defence strategy. She knew that when that lawyer was on the file, it would be a hard-fought trial, but a fun one.
Depending on one’s practice, a lawyer may deal with the same opposing counsel repeatedly. If you act in a dishonest or ethically dubious way one time, you will get a bad reputation, and you won’t get trusted in the future. This may work to the disadvantage of your future clients, if, for instance, you’re trying to convince a prosecutor of your client’s good faith, lack of flight risk, or willingness to cooperate.
My license and my reputation are far more important to me than any one single case.
These things are very culture bound. At the risk of cultural stereotyping, an American jury might be more impressed with aggression, whereas a British jury might find it off-puttingly odious. “Creativity” usually looks like a ploy of desperation. Jurors are not usually impressed by such things. They are not stupid. They have an ear finely attuned for “stunts”. It only works on TV because they write that the jury is to be impressed.
Cultural variation aside, there is a significant advantage in being understated in many circumstances. There is value in presenting yourself as a contrast to the other side, so that if they are aggro, you look like the voice of reason.
Also, there is a sort of Newton’s Third Law principle in advocacy, to the effect that the more you push, the more the audience tends to push back. We all have experienced this with pushy salesmen. If the circumstances are extreme (like a grisly murder) and a prosecutor avoids being all adjectival and condemnatory, the jury tends to think up their own adjectives, and thus comes to “own” a mindset which is against the defence. In a case where a crime is extreme, it is often unwise for the defence to go in attacking too aggressively - the jury will hate the client even more. Aggressively cross-examining a tearful young rape victim is not going to end well.
If an aggressive strategy is chosen, it is very difficult to get the right balance of light and shade. Yelling all the time is exhausting to the audience and very quickly irritating. Like typing in all caps. And the variations you deliberately throw in might not fit with a jury’s expectations, so you look like you’re acting.
And there are purely theatrical issues. A presentational style that looks impressively aggressive in a tight shot on TV has a horrible tendency to look lame and hokey in a real courtroom. The aggression in the TV shot is contained and in a sense concentrated by the frame of the shot. In a large courtroom, all that emotional energy kind of evaporates and gets diluted by the sleepy bailiff, the quiet court reporters, people shuffling papers and so on. This makes the aggressor look shabby and theatrical.
Bear in mind that real court cases last much longer than the few minutes they seem to on TV. Real jury addresses can go for hours, not 30 seconds. It is impossible to sustain emotionality in a way that maintains attention for protracted periods. Most of your time will be simply have to be spent going over the detail in a relatively unemotional state. Corners are not cut in criminal trials. DNA evidence whose effect is described in 10 seconds in a TV show can take days to present, with all the Scenes of Crime officers who found a speck of blood here and a cigarette butt there, and photos of all these things, and then continuity witnesses explaining they took the samples from point A to point B, then a dry explanation of how DNA works…
There is no room for emotional energy in this sort of stuff.
Shortly put, there is a big place for what I will call minimalist advocacy. In a sense, it subverts the cultural trope of aggro lawyers and gets attention and interest for that reason alone. It brings focus to the important issues. It draws the jury to a conclusion rather than pushes them to one. You have to have the capacity to be a thunderbolt in your arsenal of course, but those tricks have to be used very sparingly or they wear out their welcome.
Wouldn’t a real-life Bobby Donnell argue that this is placing your own self-image, self-esteem, and personal convenience above your clients’ needs? The law is designed to protect you, isn’t it, in that you’re ALLOWED to push many of the envelopes the TV lawyers push (not all–that’s why it’s TV), and if your adversaries say “I’m not sure I can trust you on this one,” that’s their problem. Is the law designed so that lawyers’ trust for one another is the principle it operates on, or is it operating in advocacy rather than cooeperation among lawyers?
Why privilege that client whose case allows you to enjoy the opposiing counsel’s trust above that client whose case would benefit from aggressive, hostile lawyering? This sounds like a rationalization of the easier path to me.
I think the point, because I work with attorneys like this, is that choosing not to take the ranting, raving approach early in your career benefits ALL of your future clients. If you “have” to be aggressive and hostile, that just means opposing counsel is an asshole. It is very unlikely that stooping to that level is going to benefit your client.
(Disclaimer: prr and I are pals IRL, so I hope he won’t take this as a personal attack, but …)
The concept of hostility not working as a fundamental stance in the universe might need some additional explication here. This does not jibe with prr’s usual assumptions.
The concept on TV lawyer shows is that aggressive advocacy, balls-to-the-walls, I’m-not-in-this-to-make-friends lawyering is effective, and TV clients often complain about Bobby’s lack of defense, so I’m just wondering what sorts of standards apply to the most laid-back of advocates. **Northern Piper **provided some sound reasons that a less hostile style might be effective, but you do hear of super-aggressive killer sharks IRL all the time. I’m just wondering about the parameters of lawyering styles, and where unaggressive defense lawyering crosses the line into incompetence, ineffectiveness, etc. I get the feeling that Bobby isn’t doing his job right (by his own lights) if he doesn’t get cited with contempt, or thrown into jail on some other charge, every few months.
We in the recovering community refer to active alcoholism as “self-will run riot.” I stopped watching The Practice when I realized what a good description of Bobby that was.
And with that – I’m not entirely sure what I’m doing in this thread, so I’ll blow you a kiss and bid you adieu.
I’m drawing a distinction between being aggressive or even hostile, on the one hand, and being dishonest or unethical on the other. Aggressive lawyering is just lawyering; we’re all aggressive to some extent simply by the nature of the job. Hostility is commonplace, although rarely useful; most of the time, when you see a lawyer being a jerk, it’s because he’s a jerk, and not because it’s of any value to his client.
Dishonesty, however, is poisonous to a lawyer, and by extension, his client. So much of the practice of law requires effective persuasion, and once exposed as a liar, the lawyer’s (and the client’s) persuasive ability will be seriously compromised. It’s not a question of privileging one client over another; dishonesty hurts the current client as well as future ones.
Please understand; my reputation for rectitude and probity (:p) is important to me as an asset to my practice, as well as a matter of personal and professional ethics.
No, I’m talking about hostile rather than dishonest behavior. Try this: I’m asking you to think of three most aggressive, creative defense lawyers you’ve dealt with and the three least aggressive. (Or maybe just the three most likeable and the three least likeable.) If someone you loved was in need of a criminal defense attorney, would you favor the first group or the second, or would it all depend on the particulars of the case and you wouldn’t value or devalue aggression or likeablility as a reason to choose one of these groups of attorneys over another group?
I think your most recent post is changing the discussion a bit from your OP, where you referred to unethical conduct. In my mind, unethical conduct is in a continuum with dishonest conduct.
Okay, I did the thought experiement you asked - I came up with the four most aggresive lawyers that I’ve had dealings with. And I wouldn’t send a loved one who needed a lawyer to any of them.
Two of them have a reputation for soaking their clients financially, regardless of the results they obtain. And the results they obtain aren’t stand-outs. Other lawyers could get similar results.
Another has a reputation for dragging everything out, with needless motions and applications, regardless of their merit, again at the cost of the client, and again without getting stellar results.
And the fourth is just aggressive for aggresiveness’ sake in court, hoping that if he’s angry and stormy enough, he’ll intimidate the witnesses or the other lawyer enough to succeed. (I heard one judge in a social setting commenting on that lawyer’s performance, after a case was over: “That lawyer goes off in court like a machine gun. Only thing is, most of the time he’s shooting blanks.” Not really the reputation you want to have with the court… :dubious: ) And again, the results he got didn’t stand out that much from other lawyers’ work.
I think the mistake you’re making is that you’re assuming aggressive lawyering is creative. I don’t think it is. I think it’s actually a lack of creativity, and simply a form of bullying.
Also, it’s not a matter of likeability. Of the four I thought of, I actually enjoy going to coffee with one of them. He’s a charmer and can be quite funny, and he is a smart fellow with interesting insights. However, [Piper coughs modestly] in the long run, I’ve generally got the better of him in court - in part because I consciously adopt a very low-key, rational response to his aggressive tactics, so his aggression tends to fizzle in front of the judge and he doesn’t have well-thought out arguments in response. In fact, in my last encounter with him, the judge was quite irritated with his line of argument, and on more than one occasion gave me a look, essentially inviting me to jump up in response. Even so, I kept my interventions short and focussed on the argument.
Then I thought of who I would send a loved one to consult, and the three I thought of are not at all aggressive in the Bobby Donnell mould. Again, it’s not a matter of likeability, because most court room lawyers have a certain degree of charm or good personality. They tend to be people persons. But I don’t think any of the three I thought of would soak their clients, and they would provide good results - better than the first four would, in my opinion.
Even in the big city where I serve as a magistrate, jerk lawyers can develop a reputation for themselves very early on, and it can be almost impossible to shake. People talk. Word gets around. A jerk lawyer won’t even know what doors are closing to him in terms of civil settlements, criminal plea agreements, close calls on motions and social/networking opportunities because his jerkish reputation has preceded him.
The best lawyers I know are zealous advocates for their clients without being jerks. They’re smart, prepared and persuasive, but they’re not shouters. They don’t cut ethical corners. They will fight when they need to, settle or plead out when they can, and they have the experience and good judgment to know which to do and when. They have hard-won credibility and are careful not to lose it for a single client.
I’m imagining the three most aggressive lawyers I know, and I wouldn’t send a loved one accused of a crime to any of them, for most of the reasons Northern Piper mentions. The three least aggressive lawyers I can think of are, at least, smart and pleasant, but probably aren’t going to be all that persuasive to a jury. When I think of the lawyers to whom I would send a loved one, they’re on neither list. They’re each in the middle of the continuum that runs between, say, John McEnroe and Bob Newhart, Esqs.
I didn’t watch The Practice (I was turned off by the initial ad campaign for the show, which I still remember included the line, “They hate lawyers, too”), but if the description of Bobby Donnell in the OP is accurate, he’d probably be held in contempt and referred to the bar association on a disciplinary complaint if he tried any of that crap in my courtroom.
I have worked for many attorneys, in many law offices (temp jobs when I was between “real” jobs).
One memorable temp job:
Two women opened offices here in Las Vegas and I was sent there for a two day stint. These two women were unfuckingbelievable. They screamed at the top of their lungs, took four hour lunches, swore like drunken sailors, treated their staff like shit and thought they were “cute” when they did that.
On the first day, I was trying to sort out the desk and, at the bottom of a pile of paper was a letter from a guy in prison…one of the women had been assigned to be his court appointed attorney and he was wondering when she would stop by. The letter was dated over three months prior! She had never bothered to answer him or look at the letter…so I show it to her. “Oh, that. He’s probably guilty.” Then she walked off.
An hour later, I walked into the office and she was on a call with her boyfriend, got mad and tossed a heavy glass ashtray into the wall with full force.
As I was packing up to leave after two days, one of the women in the next cubicle said, “I can’t believe you lasted this long. The last temp left after two hours.”
I called the temp agency and said if they ever sent me to a place like that again, I would never call them again. They apologized, admitted they only sent me because nobody else would go there, and they gave me the best assignment they had to make up for it.
