“No, I’m not disingenuous—You’re disingenuous!”
“I’ll see your motion for sanctions and raise you a bar association complaint!”
Does fighting fire with fire produce the best results? Or is there another way?
Karate & Legal Advocacy
Years ago, I studied Karate. Karate is defensive. My Sensei used to say, “The best fight is the one you avoid.” Yet we were drilled endlessly on block-strike techniques. The attack comes; you block it; and then you strike your attacker. In real life, this can mean injuring or even inflicting mortal harm on the other person.
In the legal world, communications between attorneys often resemble block-strike drills. Attorney “A” takes a verbal swing at Attorney “B.” Attorney “B” blocks it (“That’s false!”) and follows with a counterstrike (“You’re the one who’s wrong!”) The block-strike pattern continues on . . . and on . . . and on.
Aikido & Legal Advocacy
Last century, a martial arts master in Japan developed a form of self-defense called Aikido. Instead of block-strike, the defender blends with the attack, using the attacker’s momentum to move him or her to a place and position where no one gets hurt. The defender often turns with the attacker, seeing what the attacker sees, while moving hostile energy to a non-hostile destination. (My blog post, “Resolving Conflict: Fight, Flight, or Aikido?” discusses Aikido and how to apply it to verbal attacks in greater detail.)
Using Aikido to Respond to an Attorney Demand Letter
Several years ago, my client received a demand letter from a plaintiff’s attorney. The letter included a copy of a complaint that the plaintiff had filed in court. An ex-employee of my client, the plaintiff claimed he’d been fired illegally. The letter threatened major litigation and demanded a substantial amount of money within 10 days.
I had not met the plaintiff’s attorney, but knew his reputation for “take no prisoners” aggressiveness. I called him to discuss his client’s complaint and money demand. The attorney gave me an earful about how horrible my client was, how terribly it had treated his client, how weak our defense was, and how he licked his lips at the prospect of telling his client’s story to a jury. With scorn and derision, he met my attempts to point out law and facts that could be problematic for his client’s case.
Karate wasn’t working. So I switched to Aikido.
I asked lots of questions and followed up on his answers with responses such as, “Any other reasons you think my client has no chance at summary judgment?”
I bookended facts and law favorable to my client with comments like, “I’m interested in the reasons you think these facts won’t impact the plaintiff’s case.” Or, “I’m curious why you think the judge won’t be persuaded by this argument.”
After I continued in this vein, the attorney’s tone changed. It became more conversational and less adversarial. I acknowledged some weaknesses and problems in my client’s case. So did he (if a bit grudgingly).
Eventually we found a common theme that helped promote early settlement. The plaintiff’s attorney made a disparaging comment about corporate defense attorneys. “First they milk the case to meet their billable hour quota, then they say, ‘Let’s settle’ and persuade their clients to settle on terms they could have gotten months before.”
This comment gave me an opening. “Well, then,” I said. “This means you have a duty to save me from myself.”
The plaintiff’s attorney didn’t have a ready response. Instead, “save me from myself” became a refrain that helped encourage settlement concessions from him since, as I pointed out, “early settlement will, of course, be bad for me and my firm—not that I expect you to be sympathetic.”
Within three weeks, the case settled for a fraction of my client’s damages exposure and a fraction of what even a successful defense would have cost.
A Legal Ethics Attorney Weighs In
Calon Russell is an attorney with Holland & Knight. He advises lawyers on how to navigate ethical issues in order to avoid allegations of misconduct, and defends lawyers if they are accused of misconduct.
Last October, Calon and I were on a panel at an American Bar Association conference. After I shared my views on Karate, Aikido, and legal advocacy, Calon weighed in from a legal ethics standpoint. He shares it here.
When I first heard Jathan’s block-strike analogy, it immediately brought to mind a type of problem that my colleagues and I regularly see in our practice. Namely, when a lawyer takes a highly aggressive approach—especially in litigation—it is not uncommon for the lawyer to get personally dragged into the fray and end up facing direct liability of some sort, whether it be a bar complaint, malpractice claim, sanctions motion or something similar. Although my group is always happy to step in to assist the accused lawyer or firm, it often appears that the issue could have been avoided, or at least highly mitigated, if the lawyer had taken a less zealous approach.
But isn’t there a duty of zealous advocacy? And aren’t we compromising our client’s interests by being less than zealous? The answer is “no” to the first question, and “not necessarily” to the second question. Jathan’s paradigm explains why: hitting your opponents, figuratively or literally, is often not the best way to get what you want. In fact, ethical rules have evolved over recent decades to account for this fact.
Many states’ ethical rules have eliminated the word “zeal” entirely, and the ABA has, since 1983, relegated the word to the preamble and commentary to the Model Rules of Professional Conduct. Comment  to Model Rule 1.3 notes that lawyers should “act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.” That sentence is immediately followed with: “[a] lawyer is not bound, however, to press for every advantage that might be realized for a client.” This excerpt calls for a measured approach, and practitioners who justify “Rambo-lawyering” by reference to a duty of zealousness are both behind the times and simply incorrect about the existence of such a duty (at least in most jurisdictions).
Jathan’s Aikido paradigm offers a compelling example of how this shift can be beneficial to clients. I would add that this shift is also beneficial to lawyers.
In my experience, lawyers who take zealousness too far seem to be the most likely to get in trouble. Consider, for example, lawyers who take a contentious approach to discovery. In such situations, motions to compel often come into play, which effectively force the judge to pick a side. Upon doing so, the judge will then have to determine whether to impose sanctions on the losing party and/or the lawyer. Although it may be overambitious to think that the Aikido approach can resolve all discovery disputes outside of the courtroom, this approach could at least be used to reach common ground as to where the true points of contention lie. And if the parties approach the judge with a handful of close-to-the-line issues, rather than a mountain of block-strike epithets, the likelihood of either party or lawyer being sanctioned should drop substantially. In other words, both sides should have a common interest in taking this approach.
In a profession which is often defined by words like “zeal” and “adversarial,” taking the Aikido approach seems counterintuitive, but in the end it is often better for both the client and the lawyer.
Jathan Janove is Director of Employee Engagement Solutions and a shareholder in the Portland office of Ogletree Deakins. Follow Jathan on Twitter.