Shouldn't Lawyers Understand the Art of Persuasion?
Derogatory characterizations of an opponent is not the essence of persuasion.
Posted April 23, 2017
On April 1, 2017, the American Bar Association's ABA Journal published an article by Bryan A. Garner titled Make motions more powerful by writing openers that focus on 'deep issues'. In the article, Garner stated in part as follows, and unfortunately, it wasn't an April Fool's joke:
"While teaching an in-house CLE seminar recently, I asked the participants to count the derogatory characterizations of the opponent on the first 1½ pages of one of the firm’s motions. The thing was a record-setter: 33 serious blasts in fewer than two pages. 'But isn’t that the essence of persuasion?' someone asked.
'No,' I said. 'You’re asking the judge to become empathetically aligned with your position, to walk with you. If you’re excoriating the other side with emotional billingsgate (yes, I’m afraid I used that word), you’re making it hard for the judge to adopt your position. You want to win with cool, hard logic.'
It’s a hard lesson to learn—that a coolly written opener is far more likely to carry the day than a heated one."
I've had the exact same experiences when I have given presentations to attorneys.
On February 5, 2015, I presented at the San Gabriel Valley Family Law Study Group on "De-Escalating Parental Conflict Through Service Delivery." The program focused on strategies and behaviors attorneys can leverage to reduce the risk of parental conflict, including the point Garner made in the above-referenced article.
Among other things, I asked the approximately forty attorneys in attendance the following question:
If you are representing a parent on parenting related issues and your client and the other parent can't reach an agreement, do you believe that the other parent is unfit?
The room went completely silent before one of the attorneys responded, "Of course not!"
I then asked the following:
If a parent's fitness isn't the issue, do you ever have your clients acknowledge the other parent's fitness as a parent and possibly that they may even have a good relationship with the children?
The first comment I received was the same first comment I typically receive when giving programs such as this, which was, "But, what if the other party isn't a fit parent?"
My response is always the same, which is that my question was based upon the premise that "parental fitness isn't the issue." Interestingly enough, the attorney making that comment at this particular program happened to have been trained in both mediation and collaborative law.
This should make you wonder about lawyers' listening skills and whether or not training alone makes someone a well-qualified mediator or collaborative law practitioner.
In any event, one of the attorneys present, who has been both the Chair of the Family Law Section and President of that same Bar Association said the following in response to my question:
"We can't do that because we are retained to zealously advocate for our clients."
In response, I agreed that lawyers are supposed to advocate for their clients, but reminded them that parental fitness wasn't the issue in my hypothetical. I commented that the other parent is not necessarily a bad parent just because both parents are not able to agree on a parenting plan or some other issue pertaining to their child(ren). I also explained how derogatory characterizations unnecessarily escalate the conflict between people who have children they need to co-parent.
The attorney again insisted that doing what I was proposing was inconsistent with their role as their client's advocate. The others in attendance appeared to agree with this particular attorney, so I dropped the topic and moved on to another.
In any event, the steadfast mindset of the attorneys troubled me to such a degree that I mentioned it to a particular family law judge I saw at a seminar two days later. I knew this particular judge would understand my point because she had been a mediator and collaborative law practitioner prior to becoming a judge.
She responded by telling me that before taking the bench and after she had been handling cases in the collaborative law process for a while, she began doing what I was suggesting when she was still litigating. She said that she noticed that far more of her cases settled as a result.
She then commented that from her perspective as a judge, on the very rare occasion that litigants do what I was suggesting, it gives them far more credibility. She said that otherwise, every parent going before her is contending that their co-parent is unfit, either directly or by implication. Since that can't possibly be true, assuming parents don't sincerely believe that the other parent is unfit, they gain credibility from the judge by acknowledging that the other parent is fit as a parent and may even have a good relationship with the children.
In other words, when attorneys won't do what I was suggesting because they mistakenly believe it conflicts with their role as advocates, they make it less likely that the case will settle, while also causing their clients to lose credibility when the case does go before a judge. How on Earth is that good representation?
In subsequent programs, I've read the following quote from an article by Laura Meherg of the Wicker Park Group titled Be the Effective Team Your Clients Need:
In fact, the San Gabriel Valley Psychological Association published a three-part article of mine that was based upon a program that I gave to attorneys on the importance of empathy in our work. For those interested, the articles can be found at the following links:
And, for what it's worth, lawyers might better assist their clients if they were aware of the fact that in California and many other jurisdictions, they are not obligated to "zealously" advocate for their clients. In fact, the term "zealous" was removed because it led lawyers to behave badly.
The following is an excerpt from an article by David M. Majchrzak and Heather L. Rosing titled Be civil, for client's sake that was published in the October 28, 2016 edition of the Los Angeles Daily Journal:
"It might be unusual to sit through a single day's law-and-motion calendar without seeing one lawyer accuse another of some misconduct or character flaw. This could take the form of attributing unresponsiveness, unreasonableness, or some other uncouth quality to an adversary. Often that may be in response to some form of courtesy withheld, perhaps in regard to a request for a short extension of time. but regardless of the reason for resorting to such tactics, lawyers should reconsider such an approach to litigation. Ethical reasons could require some restraint....
Clients primarily come to lawyers for one reason: They have problems they cannot solve themselves. ... Generally, it is in the clients' best interest that those problems are resolved as efficiently and expediently as possible. And that is where civility plays a part....
Boorish and uncooperative tactics are much more likely to escalate an already sensitive situation than they are to move it toward resolution....
Sometimes, lawyers may attempt to justify such conduct in the name of zealous advocacy. But such an argument is usually unavailing. Whereas lawyers are advocates, they cannot be true 'zealots.' Keep in mind that a zealot is a person who is fanatical and uncompromising in pursuit of that goal....
Indeed, lawyers are not required to be 'zealots.' The Rules of Professional Conduct do not contain any express duty to zealously advocate. Even the former Model Rule addressing zealous advocacy was replaced with Rule 1.3, which instead requires representation of a client with 'reasonable diligence.'
The duty of loyalty requires that attorneys be strong advocates for their clients. But distinguishing that from being a zealous advocate - one who acts fanatically and without compromise - is not merely an exercise in semantics. Clients have an interest in their lawyers recognizing this so that they can conclude, rather than continue disputes."
Although I no longer litigate and haven't for quite a few years, I acknowledge that litigation is sometimes necessary. However, it should be utilized as a means of last resort and there are different ways of litigating.
You can effectively litigate without unnecessarily escalating conflict. Furthermore, there are things you can do to deescalate conflict, while still litigating. I oppose prematurely jumping into litigation, unnecessarily escalating conflict in litigation and believe that litigators should try and deescalate conflict, to the extent possible. Is that too much to ask?
Apparently so, as I discussed in my article Is Willful Ignorance a Good Quality in an Attorney?
To alleviate any doubt you may have with regard to such willful ignorance, I'd like to share a comment made over lunch by an attorney who attended the program I gave at the San Gabriel Valley Family Law Study Group. He told me that he really enjoyed my presentation and agreed with most of what I had to say. He also told me that he doesn't feel comfortable admitting this to any of his litigation colleagues because they just don't "get it" or don't want to "get it."
Ironically, the attorney I mentioned who happens to be the former Chair of the Family Law Section and President of that same Bar Association regularly gives presentations to lawyers on civility, and to members of respected organizations such as the American Bar Association. I attended one such program in October 2016, in which he consistently reminded us of our ethical obligation as "zealous" advocates. Apparently, he was unaware that we can effectively advocate without "zealousness" and should ethically be doing just that.
Meanwhile, this particular attorney and many others continue "educating" lawyers about civility and their need to "zealously" advocate.