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:
- Being loud does not make you good. There really is no relationship between the two.
- A lawyer may seem quiet in a meeting, but be fierce in the courtroom.
- 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.