Editor's note: Your ProbateShark finds this concept of attorney aggressiveness interesting. The lawyers and judges in the ProbateCourt of Cook County had disrespect and insensitivity toward the families of the disabled wards down to a science. Mr. Balestriere could learn much from them. Lucius Verenus, Schoolmaster, ProbateSharks.com
Shyness Is Not A Litigator Trait
John G. Balestriere
A few years ago I settled a matter with a large bank and, afterwards, I invited the outside counsel for the bank to lunch. She was personable and professional and, at the lunch, noted that during the settlement talks — the first time she and I had had any really extended communication — she was surprised at, as she put it, how nice I was.
When I asked her why the surprise, she said, “Because that other guy you had on the case was a jerk.” The “other guy” was a lawyer we had to push out of the firm and, after he left, I realized that he frequently was very aggressive — a jerk, in fact — with adversaries. I also realized that the other guy had not done all the work he claimed he had on certain matters. There was a connection there, and I’ve seen it with many lawyers who immediately are obstreperous morons: they put on a face of aggressiveness to the point of jerkiness to fend off discussion of issues or to profess impatience with adversaries as a way of not engaging those adversaries. If you’re not prepared or not doing all you should, and you seem like a jerk, you will put off your adversaries, and others. If you’re a jerk, people do not want to talk to you, including your adversaries, and then you can avoid the nuanced discussions adversaries will frequently have about issues in their matters.
Do not be a jerk (another ATL columnist has thoughts on that). But do not be too nice or shy. I am not talking about courteousness (be courteous to everyone, including jerk adversaries) or professional demeanor (as noted before, we should do the absolute best work for ourselves and our colleagues, and that includes how we hold ourselves). I mean do not be so concerned that someone will think you’re a jerk that you are too quiet or too polite and do not take the aggressive steps necessary to win for the client.
Not only is litigation adversarial, in litigation, you frequently deal with people who do not want to deal with you, but with whom you need to deal, and whom you need to do something so you can win for your clients. While we have the best people at our firm, I find that with younger lawyers and with non-lawyer analysts (who have gone on at our firm to become lawyers) the senior staff need to train new people to be appropriately aggressive.
Witnesses are an obvious example of someone who does not want to deal with you but with whom you may, in the end, need to be forceful. No one enjoys getting a request from an attorney to speak regarding litigation. More sophisticated individuals appreciate that we have a system for resolving disputes that protects them—we all have a right to the courts, if, in a terribly unjust way, in woefully different degrees—and that sometimes means being a witness in someone else’s case. Many potential third-party witnesses, however, will do all they can to avoid a lawyer who has reached out to them. Do not be the shy young (or older) attorney. Do not just email the witness and wait a week hoping she gets back to you. Email first—it gives someone who doesn’t know about your case a heads up. Then email again and suggest a time to talk. But then move things along. Pick up the phone. Call her. Keep trying to speak to her. And if she begs off, then use the subpoena (consistent with applicable rules). Do not be shy.
Even more commonly as a lawyer you need to deal with court and government clerks. Some clerks are great, perhaps sharing with you the means to get through the genuinely byzantine rules of the courts (while thankfully you can file electronically in most parts of the country these days, that doesn’t mean there aren’t 47 different rules you need to follow every time you file a document). But then many clerks are . . . not great. Immediately after law school I was an assistant district attorney in Manhattan. As an Irish and Italian lawyer from Brooklyn with the accent my law school time did not diminish, I had it easier when dealing with the native New Yorkers that make up the support staff in the Manhattan DA’s Office. But I still was sheepish, if for a short while, when dealing with all these clerks barking and criticizing the new lawyers when I first started.
Given that experience, from day one, I should not have been surprised the first time I had to go to the Criminal Court clerk’s office in my first month as an ADA when I saw that there were two signs on the door leading into the clerk’s office.
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