“Aggressive” Lawyers Often Finish Last

When evaluating lawyers, particularly litigators, we make the same mistake over and over again when we more highly value attorneys who strike us as “aggressive” compared to those who seem calm, cool, and confident. The facts tell us the calm lawyers do at least as good a job, or better. But the myth continues.

Mark Herrmann wrote a great post at Above the Law about this ongoing misperception. He makes three points:

  1. Being loud does not make you good. There really is no relationship between the two.
  2. A lawyer may seem quiet in a meeting, but be fierce in the courtroom.
  3. Aggression is very counter-productive if it costs additional time and money.

Then Herrmann tells an illustrative trial story featuring none other than Dr. Josef Mengele.

Here’s another trial story :

I know a criminal defense lawyer who is laid-back, friendly, polite, and helpful. I know he is all those things because when I met him, I was a student attorney working for the prosecution.

One day I watched him in trial; it was a felony case where a woman came home to find her front door ajar. She went inside, heard noises upstairs, and halfway up the stairs encountered a man coming down holding a few of her belongings. The two spoke for a moment (she begged him not to steal her laptop) and the man fled.

So, at trial, since the victim-eyewitness would take the stand to identify the defendant as the man that was in her house that day, defense counsel took the only path he could: he argued that the defendant was not the man that was in her house.

That’s a tough sell. But he pulled it off by calmly, rationally persuading the jury to be skeptical of the memory of a woman who came home to confront a stranger in her house.

The tape of the 911 call she made immediately after the man left showed how upset she was. There was also a slight difference between the man in the photo the victim used to identify the perpetrator and the appearance of the defendant in court. Finally, she testified that her verbal exchange with the man had lasted one or two minutes. Defense counsel looked at his watch and asked everyone to sit perfectly still for one minute. It seemed an eternity, much longer than the exchange she described. He asked her if she wanted to change her answer. She said no.

That was enough, because the perfectly calm, confident defense counsel allowed the jurors to decide, on their own, that they could not find beyond a reasonable doubt that this was the man.

A more “aggressive” approach would have backfired. To attempt to browbeat the jurors into rejecting what has for centuries been the gold standard of evidence (a close-up eyewitness account of the crime) would have failed miserably. Jurors want to do the right thing, but they want to find their way to the right thing, not be beaten over the head by an obnoxious lawyer telling them what the right thing is.

To be an effective lawyer, you need to win people over. You do that by being prepared, courteous, and firm. You don’t do it by being aggressive.

Photo: shutterstock.com


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  • As this is the season for deciding whether or not to attend law school, take the point of Andy’s post. If the people in your life say “You’re so good at arguing. You should go to law school,” thank them very much and find another profession.

    Arguing for the sake of arguing is unattractive, often unproductive, and, in these interesting economic times, not an activity that a savvy client will support.

    • But isn’t arguing for the sake of winning a case exactly what a client should want?

      • shg

        A common misunderstanding. The lawyer’s job isn’t to argue, but to persuade. It’s persuasion that wins the case. Arguing is just one of the many tools a persuasive lawyer uses.

  • I just got through moderating a panel discussion for our local chapter of the American Inns of court on the importance of civility. The American Inns of court include the best trial lawyers in the country. All of those lawyers in the room were living proof that being Civil leads to more success than those with indiscriminate aggression. Even a dog knows to not bite and growl at everything.

  • I’m so glad to see this topic coming around again, maybe because lately I have been confronting some of this misplaced attitude in my family cases. Aggressiveness is over-rated as a problem-solving tool in our field, and exactly for the same reasons as Susan indicates.

  • shg

    Andy, I think you misapprehended Mark’s point. To think that not being aggressive, per se, is better or worse than being aggressive, is to have an unduly simplistic and immature grasp of how to be an effective lawyer. Mark’s point is to be capable of being aggressive when needed, when effective, and similarly capable of being calm and controlled when needed, when effective, and being smart enough to know which to be at any given moment. A good lawyer is multidimensional, and able to pull out what he needs to serve his client’s interest as needed.

    One of the problems (as I tell Sam all the time) with posts here (and with comments as well, as overwhelmingly demonstrated by the ones above this one) is that the depth of thought and understanding here is frequently lacking in nuance, unduly simplistic and reduced to its lowest common denominator. I realize saying this hurts some people’s feelings, but if no one tells them, they won’t know.

    You’ve shown some desire to think more critically, and I both applaud you for it and hope that you will continue to develop a deeper level of thought. Perhaps you will inspire others at Lawyerist to think harder too. I know it will give them terrible headaches, but they’ll get over it.

    • Funny, I took this post to be more of a commentary on the “indiscriminate aggression” factor, as Perry phrased it.

      • shg

        Ironically, I read it as somewhat confused, as I do the “indiscriminate aggression” descriptor. Neither the passive nor aggressive (nor, for that matter, passive/aggressive) lawyer wins, but the miltidimensional lawyer.

        The problem is that one reading Andy’s post would, superficially, take away that aggressive lawyer isn’t as good a non-aggressive. It’s not necessarily true, and clearly not Mark Herrmann’s message. That’s where more nuanced writing (and reading) becomes important, so that the reader doesn’t leave stupider than when he arrived.

    • misterhart

      Let’s all thank Professor Kingsfield for (once again) making us all better lawyers by enlightening us with his completely non-obvious bits of “advice”, such as “it is important to know when to be aggressive” and “competence is more important than a logo”.

  • Alonso Sarmiento

    Dear Sirs.
    The lawyer may be aggressive or cautious, He can display intolerance or patience can put on a show or being indifferent to the court, but first of all can not be improvised. If the lawyer does not prepare his case in a thorough and detailed, if not study every aspect of his defense or legal advice, then He will feel sorry for the surprises that will bring the result. The lawyer, over the years acquired a number of skills and services that must be polished to achieve an effective and efficient professional service within the law.
    Alonso Sarmiento Llamosas
    Attorney at Law
    (since 1980 in Lima, Peru)

  • I have worked with a number of lawyers and many are smart stylishly nOn aggressive but focussed and yes there is a difference. We in England, UK call it ‘quietly devastating’ as per a chap I know (SDK). Some aggressive lawyers don’t know when not to be aggressive. It’s like arguing when it’s not necessary and in fact counterproductive. So I entirely follow the point.