Why Are You Nice to the Enemy?

My friend was a long-time public defender before he retired. Over four decades of public defense, he accumulated a lot of wisdom, which usually takes the form of self-deprecating, humorous, and instructive stories. One such story comes to mind.

Years ago, my friend represented a client in a two-person conspiracy. The other person’s family had financial resources and hired a local lawyer. In addition, they paid a bond to have the other man released pending trial.

My friend met with his client at the jail and was greeted with several suspicions, including the following:

  • A public defender is a “state” lawyer who can’t be trusted.
  • The client was not paying him so my friend had no incentive to work hard.
  • The client concluded that he would be out of jail if he had hired a lawyer.
  • My friend filed a motion to have his client released pending trial.

In response, the state sought to detain his client’s alleged co-conspirator, taking the position that neither man was worthy of release and both should be jailed pending trial.

My friend’s approach could not have been more different than the other man’s lawyer.

During the hearing, he made a calculated, reasoned, respectful argument that his client should be released pending trial.

The other man’s lawyer gave a loud, outraged, table-pounding response to the state’s contention that his client should be returned to jail.

  • My friend’s client was released.
  • The other man was detained pending trial.

My friend’s client’s critique: “you should be more like that other lawyer.”

Unfortunately, loud, hostile, and abrasive are confused too often for deliberate, considered, and forceful arguments.

The same is true for hostile exchanges with our opponents.

Lawyers must exercise considered caution when interacting within eyesight or earshot of clients or their family members who sometimes have the understandable, but generally mistaken, perception that our relationships with colleagues outweigh our loyalty to our clients.

Any light-hearted exchange with a judge or opposing counsel may be mistaken for a lack of commitment to a client’s cause.

This perception leads to a host of problems, including many unpersuasive and unsuccessful encounters in courtrooms.

No doubt some very successful lawyers maintain acrimonious relationships with opponents and, even, judges. It is hard to hide a prickly, abrasive, or brusque personality. Some use those traits to great advantage.

At the same time, cordial, respectful, and calculated interaction should not be mistaken for weakness. Usually the opposite is true when appropriate to the circumstances and consistent with a person’s personality.

The misconception that the louder, angrier, and more theatrical arguments generally result in more favorable results should not go unanswered.

In most human interactions, our objective is to persuade. The tone is as critical as the content and may be the difference between success and failure.

We would much rather be remembered for a favorable outcome than a dramatic, masterful, but ultimately unsuccessful presentation.

We are criminal trial lawyers. We represent people accused of criminal offenses who risk losing everything. We work to get them their best results and back to leading productive lives.

Call if you need us, or if you just want to say hello.

Amos

P.S. “Don’t raise your voice, improve your argument.” Desmond Tutu