An idle thought

I figure there’s nothing like gross over-generalization to stir up some comment and debate. So here goes.

There are two things that most litigators should know how to do: fight and persuade.

Fighting is not the same as persuading. In fact, some things that are effective in a fight are ineffective, even counterproductive, when the task is to persuade.

There is a time to fight, and there is a time to persuade.

A major source of failure to persuade is the lawyer’s failure to recognize the difference between fighting and persuading, between what is effective in a fight and what is effective in persuading, between the time to fight and the time to persuade.

Comments?

Comments

[peter]

I think that's true to a point, and it's important. But even as you're fighting you're persuading. Most often, you're fighting an adversary, but you're still persuading the court. So you have to fight professionally, which is something too many of the "fighters" I've encountered don't understand.

But yes, of course, when an adversary won't listen, and when he or she isn't acting professionally, you fight, and you fight hard, but you do fight clean. I know that's what you mean. I can't imagine you fighting dirty. But I think you get my point.

[D. C. Toedt]

I used to be a litigator. I concluded long ago that there's never a time to fight.

In the end, a litigator's only job is to try to persuade decision-makers: judges, juries, opposing counsel, opposing parties. Coming across as a fighter might help persuade a few decision-makers here and there. But it probably turns off many more.

In my experience, decision-makers are far more impressed by an advocate who never loses control, who always keeps the big picture in sight.

And finally, fighting spoils relations with opposing counsel. I learned through painful experience that the only workable attitude (for me at least) was that my opponent and I didn't have a dispute, it was our respective clients that did.

[Stephen R. Diamond]

I might be missing your distinction, as on my terms, a lawyer fights by persuasion alone and persuades for no other reason.

[Peter]

No. It isn't always just persuasion. Too many people think the best lawyer is the biggest asshole. I always treat people with the utmost professionalism until they don't reciprocate. Then I don't act unethically, but I make no accommodations, and I insist on strict compliance with the rules. I do not let them get away with anything. Those are people you have to fight. You do so ethically; of course there are others you are still persuading, and descending to the level of your asshole adversaries does no good for you with respect to the audience you are still persuading. But don't be naive. You punch back. Bully's typically can't handle that.