for adversaries (yes, you)
At Marashi Legal, we strive to develop and maintain honest and friendly relationships with our adversaries. The last thing we want to do when fighting against the demonization of our clients is to demonize anyone else. We hope you will join us in promoting a collegial, transparent and nutritive process for our collective clients and colleagues alike.
I read the below article many years ago, and I still think of it often: it is an epilogue from one of the books in the “In a Nutshell” series (remember those?) called “Trial and Practice Skills” by Kenny Hegland. I have obtained his permission to repost it here, and I hope you find it as inspiring and thought-provoking as I have.
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A new lawyer attended a trial advocacy workshop. She listened to an experienced practitioner talk of witness preparation. “Everyone tells them what to wear, so I don’t see what’s wrong with dressing their testimony.”
“I thought the analogy wasn’t quite right,” she told me later. “But I didn’t say anything; I didn’t want to come across as a moral softie.”
You’ve chosen a tough profession.
I’ve covered the easy part: how to plan cross examination, how to defend depositions, and how to write Greek tragedy. Soon you will have the skills and then the issue is you and what you are becoming.
I love the ”moral soft” story, as it captures so much, so quickly. It triggers two of my favorite dualisms, “hard/soft” and “public/private” and illustrates how much we run our lives to avoid rejection by others. My sense is that we must break out of these mindsets if we are to become the people we wish to be.
We view our profession as “hard,” and our squeamishness as “soft.” Hard trumps soft. The hard/soft delusion runs deep and tends to push us in the directions that may not be the best. Consider: Are there choices you have avoided simply because they are perceived as “soft”? Have you gutted your teeth to appear “hard” even though you may have inflicted unnecessary harm on others? What of public/private life? Can you be the same person at the office that you are at home? We all feel, Deep down, somewhat the moral softie, somewhat the outsider, somewhat the one who doesn’t measure up. To mask our vulnerabilities, we roar our terrible roars and gnash our terrible teeth.
Orwell wrote of how faces grow to fit the masks. Try “being yourself” at the office. At first it won’t feel right; it won’t feel like being a lawyer. But no one feels “being a lawyer”; all of us simply feel “being ourselves’ as we were in high school, as we were in college. So at first it is more comfortable to put on the mask; barking at secretaries and carrying a briefcase makes us feel right.
It is scary out there. But don’t hide behind the mask. Face your insecurities. Shout, “be still!” and let the wild rumpus start.
We are run by the expectations of others. In War and Peace a wounded solider regains consciousness on the bloody field. There is destruction, smoke, and pain everywhere. The absurdity of it all hits him: “I am willing to die for the good opinion of people I don’t even know.”
Actually it is not the opinion of others that runs our lives; it is our opinion of what the opinion of others might be and usually we assume the worst. A torts professor gives his students the gruesome hypothetical: their client has committed some horrendous tort, severely injuring many. But legal research has discovered the killer loophole, one which will allow the client to walk and force the victims to suffer in silence.
“What would you do?”
“I wouldn’t feel good, but I would assert the loophole!”
“Do you first discuss it with your supervising lawyer or with the client?”
“No, if you show you are a moral softie, you’ll never make partner.”
Likely these students have never been inside a law office, and yet they allow nonexistent partners to dictate the kind of person they will become. Maybe real clients and real partners would welcome an ethical discussion. An implicit lesson in law school is that people are only interested in short-term economic gain and the Devil take the hindmost.
In real life, there are heroes as well as pigs. Don’t project the worst onto others and then conform our life to meet “their” expectations. Check it out. We misread people, at least I do. Once, in class, I was discussing the “hard/soft” dualism and how destructive it can be in terms of our rejecting parts of ourselves. I was on shaky ground-just what does it have to do with contracts? A male student in the back of the room seemed bored and hostile, I read his expression as, “You are wasting my time; get on with the real stuff.” Professors, believe it or not, respond to their audience. “Well,” I said, “Enough of that, time to get back to offer and acceptance.” His hand shot up. “Before you leave hard/soft, it’s really about masculine/feminine and, growing up, I liked books more than sports and I always felt something was wrong with me. I think a lot of men who have done well academically have suffered * * *” His voice trailed off and he began to cry.
We are sipping into important stuff: life choices. “What shall we do and how shall we live?” asked Tolstoy. I don’t think we ever answer that question all at once. We answer it little by little, by the small choices we make. Over time, they add up to us.
Most critical decisions are not the stuff of existential anguish, such as whether to stay home and care for one’s aged mother or go off to fight the Nazis. They are small decisions, such as whether to mislead an adversary during a negotiation, whether to inflict harm on an opposing witness, or whether to turn in early and not read that last case which may be pivotal.
I promise not to preach. I will discuss some distorting influences on your decisions and then suggest some methods by which you can approach these decisions.
Lawyers get it from both sides. We are too zealous. We gleefully inflict great harm on third parties to achieve small gains for our clients. We take no prisoners. We sell out our clients. And charge a lot. (“I’ve got good and bad news. The bad news is that you lost custody of the kids; the good news is that you owe me $35,000.”)
There are two pressures which might make you more of a mad dog that you should be: your desire to win and the ethic of zealous representation. First, your desire to win, not to achieve justice, not to right a wrong, not to do any of those things you put into your law school application, but simply to win, as in Monopoly.
I could tell you numerous stories of law students, assigned randomly to litigate matters that never happened, on the verge of cutting throats. But my favorite involves a campus cop, who played the part of the arresting officer in a trial practice role-play. We gave him the script and he did well. After he testified, he sat with me to watch the defendant testify. The officer began to twist in his seat, his face turned red and he suddenly shouted at the defendant: “You’re lying!”
There is, of course, nothing wrong with the overwhelming desire to win, unless it tempts you to cheat, which it always does. The second “mad dog” pressure is the ethic of zealous representation. The father of American Legal Ethics, David Hoffman, writing in the 19th century, suggested a list of professional resolutions. One was “Never to raise the Statute of Limitations to defeat a just debt.”
Tell that to today’s lawyers and they throw up. “We can’t judge clients; we must stand with them in all kinds of weather, blah, blah, blah.” Perhaps Hoffman justifiably lost this resolve; it is, however, a shame we have lost his mindset. To Hoffman it meant something to be a lawyer. The profession had a history, a coherence, and an independence. No doubt there were downsides to that view, such as elitism and probably sexism and racism. But there was some glory as well. Lawyers did not think of themselves as hired guns, simply doing their client’s bidding. Theirs was a profession somewhat apart and their ethical lives mattered.
Today we are leaves in the wind.
Opposing the mad-dog pressures, there are those pushing you to cave in, to close up shop early and send the bill. Opposing lawyers and presiding judges are repeat players; clients come and go, talking of Michelangelo. Lawyers often have more in common with their opposing lawyers than they have with their client; they share, after all, Hadley v. Baxendale. In a classic article, Professor Blumberg details these pressures which work against the adversary ethic in the context of the criminal defense bar in a large eastern city. Clients were not represented, they were processed. His title says it all: the Practice of Law as a Confidence Game (1 Law and Society Review 15). And, of course, you have a life too.
In law there is always something else you can do. When do you know it’s time to go home?
So where does all of this leave us? In making the small decisions that eventually become your life, how should you go about it?
The quest is always the same: for principled decisions, decisions freed of petty self-interest and irrational personal biases...”
