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You and the Law: Passive, aggressive or pragmatic?
Jun 20, 2013 | 2267 views | 0 0 comments | 40 40 recommendations | email to a friend | print

DustinR. Matthews


I recently litigated against an attorney whose letterhead reads in big bold black letters, “aggressive representation.” At first, I thought nothing of it. After some time, however, I found myself asking, “is that really how this lawyer would like to be remembered?”

Upon leaving a hearing on a case one morning, I realized that I was the aggressive lawyer in that hearing. As I met with a law clerk present at the hearing, I asked him, “was I over the top?” He indicated that I might have been. 

Regardless of whether a lawyer is aggressive or passive, I am convinced that a lawyer does a disservice to clients by marrying one approach.

For instance, what if the difference between settling a dispute in a few days compared to four years of litigation is a handshake, a smile, or a courteous letter?

Most disputes do not hinge on one person attempting to cause pain or discomfort to the opposing party through aggressive attitudes or tactics. Rather, a large percentage of my clients simply seek a fair result. As for the remaining percentage, I remind them that the courts very rarely allow unjustified punishment because the other side “offended” you.

Realistically, I believe the always-aggressive attorney will play on the emotions of retaliatory clients by giving them a false idea of the type of relief the legal system offers. In those situations, it’s almost always the client who loses the most, and the only thing left to be said is, “Well he really fought for me, he cared.”

On the other hand, I have witnessed near-collapse of peoples lives because an attorney sat idle, passively counting hours spent on a case while rights were trampled and material principles of law overlooked or ignored.

So, what is the appropriate balance for your attorney to take? Somewhere in between? Remember, I was apparently over the top at my hearing. Did my client question my approach? Maybe. I know the law clerk did. Perhaps the goal in providing legal representation is not to give a client the aggressive approach that satisfies emotions. Perhaps it’s not to sit idle or even in between. The goal should be to provide the approach that most likely brings the most favorable result for the client in the time period most suitable to a client’s situation. I know С it’s a mouth full.

At my hearing, maximizing a favorable result for my client meant being a little over the top. Without exposing my actual intent at the hearing, maybe I only wanted to tell the judge that this case matters. Maybe I knew that the judge’s opinion was irrelevant because there is no way the other side would leave the decision up to the court. I was just calling a bluff. Maybe I intended to cause intimidation, confusion, anger, overconfidence, or maybe just overwhelm the opposing attorney, thereby placing them at a disadvantage. Maybe at the next hearing I will be as passive as I can.

I don’t know С we will see what is best for my client when we cross that bridge.

Ultimately, my letterhead does not bear the term, “aggressive,” but you will not see term “passive” either. Neither will you see the word “pragmatic,” because what’s pragmatic about that?

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