Legal Fictions: Arrogance and Litigation

legal padAs Mary Catelli pointed out in the comments last week, not all lawyers are litigators. But courtroom battles can be exciting, which means that a lot of fictional lawyers are portrayed handling trials.

There’s nothing wrong this. I never worked as a big time litigator, but I’ve done some trial work, and trying a case was the most fun I ever had practicing law. This may be because it is just a (slightly) more civilized version of the Middle Ages trial by combat. Duels, after all, provide drama.

Serious litigation is also stressful. I got accustomed to handling routine matters in court, but my stomach was always tied in knots when I had an actual trial, and I never slept well. And at least one of my losses caused me to hide in the bathroom and cry (I didn’t want to cry in front of my clients).

The case that left me in tears is a good introduction to the other kinds of work lawyers do, though. It was a case in which my clients had bought a house on what Texas law calls a contract for deed. Under that scheme, the buyers are considered owners and must make all repairs, but if they miss any payments or don’t make repairs, the seller can take the house back in a process much less formal than foreclosure.

It touted as a way for poor people to become homeowners, but it’s often more similar to renting, except the tenants have the obligation to keep the house up. In my case, the buyers had put a lot of work into the house and thought they were current on payments. It turned out there were some payments missed years back, which the seller was now using against them. The seller wasn’t willing to settle for an amount that would cover the missed payments; they wanted the house back.

After I cried, I got on the phone and found someone who would lend the buyers – who were responsible people, if not always perfect in their record keeping – enough to buy the house with a real mortgage. They ended up keeping the house.

My litigation skills didn’t help those clients much, but knowing how to talk to lenders turned out to be very useful indeed.

I spent a couple of years as an assistant general counsel at the National Cooperative Bank, where I was in a position to influence the co-ops who borrowed from the bank to set up workable bylaws. I also got to lean on developers who were planning co-ops to make sure the end result was a democratically run project instead of something that would mainly benefit the developer.

And for many years I worked in a nonprofit law firm that did housing law, where a lot of what I did was negotiate with the District of Columbia housing department, banks, nonprofit lenders, architects, and contractors, along with organizing tenant groups into co-op homeowners.

You have to know the law to do work like that, but you also have to understand human beings.

I implied last week that lawyers are arrogant. This is particularly true of litigators, especially the ones that specialize in splashy jury trials. But arrogance works against lawyers who have to deal with government bureaucrats, bankers, and a group of ordinary people.

Here’s something to consider in your fiction: Two lawyers dealing with each other can push hard in negotiations (and even harder in court), be outright rude and demanding, and then go out and have a drink together. Both of them know the system and understand what they’re doing.

But a lawyer who approaches a government official or other non-lawyer official with that attitude often gets shut down. Lawyerly arrogance doesn’t faze other lawyers, but it offends everyone else.

So lawyers who spend a lot of their time working with non-lawyers have to learn to adjust the style they learn in law school.

This also applies to dealing with the clerk’s office at the courthouse. Back in my early days, I tried a couple of cases with a very obnoxious lawyer who was always arrogant (so much so that we didn’t go out and drink afterwards). The staff in the clerk’s office – to whom I was always very, very nice – hated him. They were professional, so I don’t suppose they deliberately sabotaged his work, but I bet sometimes they just didn’t have time to find what he needed.

It was a long time ago and my memory could be wrong, but I think he graduated from Harvard Law, but was working as a rather unsuccessful solo practitioner in a small city. I know he thought he was better than everyone around him, hence his extreme arrogance.

Arrogance can be very useful to lawyers, but they need to know how and when to use it. Those who do it all the time lose more often than they win.

Unless, of course, they’re Percy Foreman.

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Legal Fictions: Arrogance and Litigation — 10 Comments

  1. And smart lawyers are always very nice to the staff at their office, too. Especially the IT support people.

  2. Back in the day when I was a newspaper reporter, I noticed that journalists came in 3 flavors: (1) Arrogant, (2) Arrogant + Nasty, and (3) Arrogant + Nasty + Stupid. When I dropped the arrogance, I became much more effective, and I learned that the people who really know what’s happening in any institution, especially legislatures, are the clerks, secretaries and assistants. Everybody else, including people like Speakers of the House and Governors are just window dressing who unfortunately have all the power.

    • Arrogance can be a useful tool, but it should be used sparingly. As a reporter, I tended to find that asking for explanation and enlightenment often worked well.

      I think lawyers are arrogant because they believe they alone understand the system. There’s nobody more shocked than a lawyer who finds out that the world doesn’t work quite the way he thought it did. I once interviewed a lawyer who normally represented corporations but had taken on a suit for some people whose water well had been contaminated by natural gas because he thought what had happened to them was outrageous. The Wall Street Journal wrote an editorial using his suit as an example of frivolous litigation and he was very angry and offended. Those who usually handle such cases expect to get those attacks, but he didn’t.

      From a fiction pov, it would be great to see more lawyers (and reporters, for that matter) who spend time being nice to the clerks and IT people and bureaucrats, while still being pushy and aggressive — sometimes even arrogant — with the lawyers on the other side and the powerful who are not taking their claims seriously.

  3. The adoption process with my second kid dragged on for nearly two years. This was not because of us–in fact, our lawyer kept telling us that for so complicated a situation (it was an open adoption) it was so easy and sane that she kept having to shove us into the future as she put out horrific legal fires for her other cases.

    After our court visit happened at last, she told me that she deliberately planned it so that ours would be her last. The heartbreak of vicious infighting over the lives of babies had so demoralized her she was quitting adoption practice as of that day. I felt pretty bad because she was smart, scrupulous, compassionate, respectful of human vagaries . . . but apparently her clients/legal opposers weren’t.

    • The great thing about comments on these posts is that they remind me of other things I know about law and lawyers that may not be general knowledge.

      One of the things lawyers run into is that the legal issue is often just a small part of a problem. I ran into this doing a lot of divorce work. You could get a woman out of an abusive marriage, but you couldn’t do anything about the fact that she was still tied to her ex for child support or that — because I worked mostly for poor people — there was never going to be enough money. Nor could you solve the problems of people who made terrible decisions in their love lives.

      I sympathize with your lawyer, Sherwood. We do need lawyers who have compassion as well as brains, but if you’re empathetic enough to have compassion, some aspects of the work will eat you alive.

  4. I just finished reading The Pipe Woman Chronicles by Lynne Cantwell. Her protag is a lawyer who specializes in mediation. It’s the first time I could actually relate to a lawyer as a character, or to the law as a vocation. Fascinating stuff.

  5. I’ve been working for litigation lawyers for 25 years. Some are arrogant, but a surprising number – virtually all that I know and work with – are simply skilled at resolving disputes. Most litigations don’t go to trial, they are settled. That’s a very good thing, because trials are very expensive and risky, for winners as well as losers. A lawyer who can keep you out of court is incredibly valuable, and the skill that accomplishes that is not arrogance.