It’s Okay For Lawyers To Be Jerks (Sometimes) By KEITH LEE

This past week, San Francisco attorney Jeena Cho started a new column for Huffington Post. Her kick-off column’s title was Stop Training Lawyers to Be Jerks. In the post, Jeena advocates that attorneys should practice law in a way that is consistent with their values, and to make a concerted effort to practice with civility. Even classic ATL curmudgeon Brian Tanenbaum thought it was good advice. But I’m here to disagree. I think it’s important for lawyers to be jerks, and I’ll tell you why.

Actually, I think Jeena (who is a friend) is mostly right and that lead-in was total clickbait to get you to read the article. I win, you lose. But now that you’re here, you might as well read the rest.

Obviously, I’ve advocated for attorneys to be jerks in the past. See my post from last December, Special Snowflake Syndrome Trigger Warning: I’m A Jerk. I’ve done so because I believe it is necessary at times, but I have also done so to be evocative. That means I don’t actually think attorneys should be jerks all the time. For an example of when an attorney was unnecessarily a jerk, let’s look at Jeena’s column, wherein she recounts her experiences as a new associate at a firm, attending a deposition with a partner:

When I was a young lawyer, I was invited to sit in on a deposition with one of the managing partners at the firm. This was my first deposition, and one of my first experiences coming face to face with an adversary. When I got to the conference room, I asked opposing counsel and his client if they wanted anything to drink and if they were comfortable. I don’t recall if they asked for anything, but what I do remember is what happened after the deposition. The managing lawyer pulled me aside and told me never to do that again. It was not my job to offer water or make the opposing side comfortable and in fact, it was my job to do the opposite. To make them as uncomfortable as possible.

This was just one example of the mentoring and advice I received from this partner, but it tainted the way I practiced law for a long time.

The practice of law is adversarial in nature. This factor, combined with the legal industry long being dominated by men, has likely given rise to a high intensity level in terms of interacting with other lawyers, especially in litigation. But it doesn’t have to be that way. Because of intense competition and the preponderance of (more than likely) over-aggressive men, the pendulum of how to conduct oneself as an attorney as swayed too far towards the “be a jerk” side.

So it’s only natural that Jeena, and other attorneys like her, strive to push the pendulum more towards an even handed approach to being an attorney that is consistent with they way they wish to conduct themselves. That is, not to constantly be a jerk, but to act with kindness and compassion for people you deal with. It only makes sense to try and forcefully push the pendulum towards benevolence and understanding. Yet I wanted to comment on this topic because it’s also important that the pendulum not swing too far towards kindness and civility.

The thing is, being a jerk all the time doesn’t make you a jerk, it makes you an asshole. It’s just not necessary. All attorneys should lead with civility and courtesy when initially interacting with opposing counsel. And they should strive to maintain that civility as best they can. But ultimately, the practice of law is not about you or your feelings. The practice of law is about what’s best for your client. And there will be times where what is best for your client is to be the biggest jerk possible to people on the other side of a case or deal from you. That’s just going to happen sometimes. But that doesn’t mean you should let those situations define who you are or the way you conduct your practice.

Being a jerk doesn’t need to be the only available tool in your toolkit. Yet to completely abandon aggressiveness and assertiveness would be to do a disservice to your clients. Rather, attorneys need to be educated and aware of what kinds of tools (kindness, civility, respect, hostility) are available to them. And law schools churning out attorneys who only have one tool (being a jerk) is just another item in the laundry list of problems wrong with them. Attorneys need to be educated in all the tools available to them: empathy, assertiveness, decorum, aggression, affinity, and enmity.

And just importantly, when to use them.

So no, don’t actually be a jerk all the time. Be civil and courteous as much as you can because it is the correct and human thing to do. But also be wary of falling too far across the spectrum towards kindness and end up doing a disservice towards your clients. It’s a fine line to walk, and it’s a good that we have attorneys like Jeena to remind us of it.

Keith Lee practices law at Hamer Law Group, LLC in Birmingham, Alabama. He writes about professional development, the law, the universe, and everything at Associate’s Mind. He is also the author of The Marble and The Sculptor: From Law School To Law Practice (affiliate link), published by the ABA. You can reach him or on Twitter at @associatesmind.

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