Every so often I get a prospective client that tells me they need a mean attorney -- someone who likes to fight, to play dirty. “I want a pit bull,” they say, or a “shark.” This is the point in the conversation when I tell them they might not want me as their attorney. I have worked with this type of attorney many times and discovered how much more they end up costing their clients. Whether their defiance in reaching a reasonable settlement causes further court costs or their behavior costs them a favorable verdict altogether, I believe a firm but respectful attorney is much more effective than a "pit bull."
If you had a box of milkbones in your garage, would you give one to a stray pit bull rushing at you, barking, and foaming at the mouth? Or would you run inside, lock the door, and call animal control? You might be more apt to give your milkbone to a dog that acts with dignity and decency -- a dog that knows what it wants but doesn’t threaten or coerce you if you don’t meet its demands.
The same is true with toddlers, by the way. When my two-year old thrashes and screams for cheese, I have no desire to give her the cheese. But when she bats her eyelashes and says “please” and “daddy,” I can’t resist.
Are you going to achieve your objectives with an attorney who bats his eyelashes and asks nicely? Not necessarily. But your chances of success increase if you have a reasonable attorney rather than a rabid one.
Soft on People, Hard on Problems
In their landmark book on negotiation, Getting to Yes, Roger Fisher and William Ury discuss how lawyers and other negotiators can be principled and tough on the issues without attacking individuals. And it turns out that issues are much more likely to be resolved this way.
The first step to treating the problem rather than attacking the person is to separate the person from the problem. This is easier said than done, but it’s essential, because emotions and egos become entangled with the problem otherwise. And when that happens, it adversely affects everyone’s ability to see positions clearly -- both your own and the other side’s. The result is a fight, a bloody lip, and hurt feelings. And typically, there’s no belt for the winner.
You’re much more likely to get your desired result by focusing on the problem and the principles that weigh in your favor.
Juries Hate Jerks
You might think that being soft on people and hard on the problem only works for negotiation or mediation. How does that philosophy play out in a courtroom, when there is necessarily a winner and a loser?
It turns out that juries hate jerks. If you or your lawyer are mean, nasty, vindictive, manipulative, or dishonest, the jury won’t vote for you. And that’s what a jury does -- they cast their vote for the person most deserving. Theoretically, the vote should be based who’s on the right side of the law, but in practice, the vote can be based much more on personality, politics, and emotion than on this statute or that ordinance.
If the jury doesn’t like you or your lawyer, it’s much less likely that you’ll get their vote.
Just last week, I was talking to a first-time juror who had the opportunity to sit on a criminal case. The charges were serious. The accused was looking at three to five years in prison. The evidence was iffy but certainly enough to bring the trial. After ten minutes of deliberation, the jury came back with an acquittal. I asked this juror why they acquitted, and here were the takeaways:
The prosecutor was nasty. She attacked the accused, and she attacked the other attorney personally in her closing argument.
The public defender was really smart, respectful, prepared, and organized.
While the prosecutor was examining a witness, the public defender listened to her and watched the jury.
While the public defender was examining a witness, the prosecutor was shuffling papers and hemming and hawing.
That’s it. This juror’s decision was based on a comparison of the conduct of the two attorneys. Maybe it was based on the evidence too, but that’s not what he told me. This juror essentially told me he’d rather give a milkbone to a golden retriever than a pit bull.
Qualities of a Competent Lawyer
In listening to this juror explain his decision, I also came away with the truly important qualities you should be looking for in an attorney. Rather than sharp teeth and a loud bark, a client needs an attorney who is:
Regardless of whether you’re facing off against your soon to be ex-spouse, a careless driver, or a powerful insurance company, make sure your lawyer is someone you, the judge, and the jury can trust, respect, and even admire. If you are that type of person as well, you’ll be much more likely to achieve your objective.