We’ve all seen and heard the ads for lawyers- they can be seen on buses, billboards, and heard on radio and television commercials. “Get an AGGRESSIVE lawyer!” “We don’t back down!” “We will FIGHT for you!” Clients seem to think they need an aggressive lawyer, and some lawyers think advertising themselves as aggressive (whether or not they are) will bring in more clients.
Where did this idea that an aggressive lawyer equals a good lawyer come from? Think about modern, popular TV shows and movies. In a lot of popular television shows, lawyers have all kinds of snide, cutting remarks to make to opposing counsel and the judges overseeing their cases. They slam phones, issue threats, insult everyone who gets in their way, and make stormy entrances and exits. They bully witnesses. This must be effective, because they win a lot!
Let me assure you that the way lawyers and trials are depicted in movies and television is almost nothing like the real life practice of law.
So what’s wrong with aggressive? Think of other fields, like sales. Have you ever bought a car from a dealership? Have you ever been turned off by a salesperson who just didn’t know when to stop? Have you ever turned to the person with you and said, “That guy could get a lot further with me if he wasn’t so pushy/gave me some space?” Have you ever had a phone call from a telemarketer who wouldn’t take “no” for an answer, and aggravated you so much that you hung up? Think of when someone has tried to bargain with you. If they were friendly and personable, you were probably more likely to accept their offer, or you were more likely to counter-offer. If they were aggressive, you probably shut down and refused their offer, taking offense at their rudeness. Most people don’t like aggression, period.
They say that you can get more flies with honey than with vinegar. In your job, would you be rewarded for being aggressive? (This doesn’t count if you’re an MMA fighter or a boxer!) Would your co-workers or customers respond well to aggression and pushiness? Probably not. It’s the same with lawyers. Lawyers have to have good working relationships with opposing counsel, prosecutors, and judges. Lawyers need to have a good feel for when to push a little further and when to back off a little, when to be a little more gentle in approach. An “aggressive” lawyer will not get very far when they irritate and anger the people who are in a position to positively resolve your case. When the judge, prosecutor, or opposing counsel knows that your lawyer is reasonable, easy to communicate with, and only puts forth issues that have real merit, they are more likely to work with your lawyer and give you a positive outcome. The same applies in a civil personal injury case. Lawyers have to be very patient and very even-tempered when negotiating with insurance companies and attorneys who work for insurance companies. Law requires patience and flexibility, and the ability to know when less may be more.
You don’t want an aggressive lawyer. You want a SMART lawyer.
Here’s an example: You have a DUI case. You don’t think that the police had a good reason to pull you over in the first place. Your lawyer reviews your case, and agrees that you have a reasonable suspicion issue. Let’s say you went with The Aggressive Lawyer. Mr. or Ms. Aggression may contact the prosecutor and say, “This case is junk! Throw this out.” The prosecutor’s hackles are up. No one likes being talked to that way. They dig in their heels and say, “Forget it. See you at trial!” Now your lawyer and the prosecutor have stopped communicating and are ready to do battle. They duke it out in court, where you could end up with the maximum sentence.
Could this have ended better?
Consider another scenario: You have a DUI case. You don’t think that the police had a good reason to pull you over in the first place. Your lawyer reviews your case, and agrees that you have a reasonable suspicion issue. Let’s say you went with Mr. or Ms. Smart Lawyer. Your lawyer contacts the prosecutor and says, hey, I think we have a reasonable suspicion issue in this case. Here’s what I see. Could you take a look at the file and tell me what you think? Even if the prosecutor looks at the reports and doesn’t think you have a winning case or disagrees that there are reasonable suspicion issues, they will have at least looked at your file and seen some of the weaknesses in the case. The prosecutor, who has worked with Smart Lawyer, knows that that lawyer doesn’t jump the gun and bluff about issues in a case. They may look at the facts of your case more critically. Because they took the time to look and they know your lawyer is a straight-shooter that they can work with, they may be more likely to offer a favorable plea, or even dismiss your case. Even if they don’t offer a better outcome, they will at least feel free to communicate with your lawyer without it being an unpleasant, combative experience.
In a civil personal injury case, consider this example:
You hire a lawyer to represent you, the victim in a car accident. You tried dealing with the insurance company yourself, but they did not want to be reasonable. You just want to have your medical bills, lost wages, and pain and suffering taken care of. You want it handled quickly and you want to move on with your life.
What could happen with Aggressive Lawyer? Aggressive Lawyer may contact the insurance company and say. “This case is worth $100,000—pay up!” The insurance company will likely say, “We don’t think so. Here’s our lowball offer.” Aggressive Lawyer may say, “No way is my client taking that! I’m suing.” Now you, the client, may be looking at another 1-2 years of litigation, during which time you are not recovering any of your out-of-pocket costs or lost income. (In fact, you are now losing more time and money in depositions and lawyer meetings.) After being so pushy and angry when communicating with the insurance adjustor, Aggressive Lawyer is no longer in a place to negotiate. The insurance company doesn’t care that this case could drag on for a couple years—in fact, having a case drag on and on saves them money in the end! They love having cases take forever! Aggressive Lawyer just made it easy for the insurance company to say “no”. When the case (finally) goes to court, it doesn’t necessarily come out in the client’s favor, as jury verdicts are not what they used to be.
What about Smart Lawyer? Smart Lawyer will probably cultivate a relationship with the insurance adjustor. Smart Lawyer will be friendly and knowledgeable. Smart Lawyer will tell the insurance company why he or she thinks your claim is worth $100,000. When the insurance company tells Smart Lawyer that the case is not worth $100,000 to them, Smart Lawyer will not give up or issue threats. Smart Lawyer will continue to explain to the insurance company reasons your case is worth what he or she says it is worth. Even after the insurance company gives a lowball offer, Smart Lawyer will not be insulted and overreact with threats or ultimatums. Smart Lawyer will keep the lines of communication open, and will remain reasonable, friendly—and firm. Smart Lawyer and the insurance company may end up doing a lot of negotiating, but the chances of coming up with a dollar amount that you, the client, can live with are drastically increased. The case could be resolved in a lot less time, without ever going to court.
There are no guarantees that a Smart Lawyer will get you a better outcome, but don’t you think that having a prosecutor, insurance company, or judge who respects your lawyer will only help you? Let’s go back to the lawyers we see in television and movies. Think of the Smart Lawyer, as shown on TV and in movies: Perry Mason, from the TV show. He’s crafty, he’s smart, and he wins with courtroom drama that doesn’t include alienating everyone in the courtroom. Think of the character of small-town criminal defense lawyer Atticus Finch, from “To Kill a Mockingbird”. Atticus Finch uses emotional appeal, logic, and dedication. Think of the old “Matlock” TV show. Matlock does it smart. Matlock uses his down-home country charm and brilliant analysis to win over witnesses and juries. These fictional lawyers all rely on using their considerable intellect and ability to positively engage with other people to win. They don’t bully, they don’t threaten, and they don’t get snarky with prosecutors and judges. They do the hard work it takes to win people over with their words and demeanor. In other words, they use skill.
There is a difference between being aggressive and being assertive. Being aggressive means coming at someone very strongly, perhaps without reason or the facts to back it up. Being assertive means getting your point across while being respectful and maintaining a good working relationship. Being assertive instead of being aggressive does not mean that your lawyer is not doing their best to get you the best possible outcome. It does not mean they are weak. In almost every circumstance, being assertive gets better results. Better results for you, the client. In trial, a lawyer who want to argue with the judge and the prosecutor is probably not doing their client any favors. Even the most fair, impartial judge is not going to want to do many favors for a lawyer who makes interactions in court unpleasant. When your lawyer is aggressive, the prosecutor or opposing counsel is going to be more likely to return that aggression with more aggression. That means more objections, more courtroom bickering. All of this the judge and jury sees. Lawyers who are unnecessarily aggressive with witnesses don’t get good testimony—they get witnesses who shut down and are combative and defiant. Neither judges nor juries appreciate attorneys who are being aggressive just for the sake of being seen as tough. The way your lawyer presents himself or herself to a judge, witnesses, and a jury directly affects you, the client. A judge or jury who has a negative view of a lawyer is less likely to rule in that lawyer’s favor. It is absolutely unfair that a judge or a jury holds a lawyer’s behavior against that lawyer’s client, but it happens all the time. Judges are human, and juries are composed of humans.
Having a smart (rather than aggressive) attorney does not mean that your lawyer will not be able to represent you well in court, should you end up going to trial. It means that they will have exhausted every avenue to resolve the case before you’re at trial. They will have done everything in their power to get you a good outcome in a timely fashion. They will have listened to what you want, and they will have balanced that with what they could realistically get you, and most importantly, they have kept ALL of your options open. A smart lawyer will know when it is time to be aggressive, if aggression is what is needed.
For the best chance of a successful outcome in your case, think about what lawyers are telling you about themselves in their advertising. Smart lawyers don’t brag that they’re aggressive. Smart lawyers tell you the truth—that they can’t promise a perfect outcome, but that they will do everything in their power to get it for you.