Yesterday afternoon while I was lifting weights (yes, I have my iPhone at the gym. I check on Twitter while resting between sets), I saw a tweet from ElieNYC in regards to the United States’ third Middle Eastern adventure:
Is it that the Powell Doctrine of overwhelming force makes too much sense? Like, there’s no glory in only engaging in conflicts you can win?
I responded with:
Clausewitz had it right back in the 1800s. Total War, or nothing. Of course, “media sensitivity” changes things.
Total war is a war in which a belligerent engages in the complete mobilization of all their available resources and population.
In the middle 19th Century, “total war” was identified by scholars as a separate class of warfare. In a total war, there is less differentiation between combatants and civilians than in other conflicts, and sometimes no such differentiation at all, as nearly every human resource, civilians and soldiers alike, can be considered to be part of the belligerent effort.
Essentially either be “all in,” or don’t even play the game. Immediately thereafter, BL1Y responded with the following:
Treat your enemies kindly, or crush them completely; they will avenge the minor harms, but cannot avenge the major.
Which is a paraphrasing of Nicolo Machiavelli’s comment that: “one has to remark that men ought either to be well treated or crushed, because they can avenge themselves of lighter injuries, of more serious ones they cannot; therefore the injury that is to be done to a man ought to be of such a kind that one does not stand in fear of revenge.” from The Prince. (Showing that despite all his snark, BL1y too is a huge nerd.) Again, be “in it to win it” or don’t play.
Classical Thoughts on War and the Modern Practice of Law
Whether in the practice of civil or criminal law, a lawyer’s behavior is governed by the rules of professional conduct. Evidence of the diminishing role of professionalism beyond the rules is that it is no longer good enough to have state or national bar rules governing ethics alone; today, many local bar associations add their own “codes of professionalism” directing lawyers to act courteously and friendly to each other, as well as to third parties and judges.
While we publicly slap ourselves on the back and pride ourselves in the creation of these professionalism codes, we are only acknowledging that incivility and unprofessionalism are part of our everyday discourse. We acknowledge that we need to have in writing the manner in which we treat each other and that we are professionals who need supervision to behave.
This is a sad commentary on our profession. To express pride in these “civility” codes is to admit that even basics of human courtesy must be legislated into the practice of law. I am embarrassed by them. All of them. That we look to the formal rules for guidance on how to behave and everything not mentioned there is fair game is a large part of why we “enjoy” the reputation we have today.
I have my own code of conduct, and I suggest each member of our profession have one as well. I believe the best way for lawyers to deal with hardball tactics of opposing counsel is to let them know at the outset of the case how you practice law.
I give all lawyers I am dealing with for the first time the benefit of the doubt, regardless of what I’ve been told about them. I start with the premise that new opposing counsel are normal human beings and will act with courtesy and professionalism. My first communication with them will be a phone call, not a “lawyer letter,” regardless of whether they initiate communication with a letter or demanding e-mail. I will coordinate all hearings and depositions with them and will not place unreasonable demands on their time that will only cause me to be brought before a judge to hear that I am being unreasonable. I will cancel any hearing or deposition if opposing counsel is sick, has an emergency, or just calls and asks if it can be reset because something “came up.” I do these things because I may need and probably will need that same courtesy some day.
Outside of my bar defense practice, which is more like criminal defense in the sense that opposing counsel is a small group of the same lawyers, my civil practice is limited to defending lawyers in legal malpractice cases. So when hardball tactics are used against me, I notice. I cringe. Recently, I received a notice of hearing in a legal malpractice case. I called the lawyer to ask why he didn’t coordinate with me. His response: “Most lawyers don’t coordinate hearings with me, so I figured. . . .” Then his voice trailed off, and he apologized. Although he initially seemed surprised that I had an issue with his tactic, he realized that doing this, based on what most other lawyers do, was wrong. On a case where my criminal client was attempting to settle a civil component of the case, the civil lawyer sent me an e-mail at 6:30 p.m. beginning with a list of documents he was demanding “by tomorrow morning.” He never thought to write, “do you think you can get these documents to me by tomorrow morning?” He just demanded.
There’s much more worth reading there but I don’t want to re-publish Tannebaum’s article en mass. Go read it when you’re done here.
Tannebaum is calling for a certain level of civility in the legal profession and rightly so in my mind. That is to give all lawyers “the benefit of the doubt” in initial dealings with them despite what may have been heard about opposing counsel’s reputation. To do so seems just and in comports with Machiavelli’s advice. Why bother slighting your enemy with minor injuries? All it will do is irritate them and create a negative impression in their minds – one that will affect your reputation and any future litigation with that attorney. Do not give cause for minor slights to opposing counsel.
On the flip side, if it is time to injure one’s opponent – go for the jugular and don’t hold back. If you extend your hand in professionalism only to have it be slapped aside, then all pretenses of civility and courtesy go out the door. As has been said at What About Clients?:
Shouldn’t professionalism be 99% about clients? Some questions:
(1) What is Professionalism in the field of law, anyway?
(2) When does it help the doing of work?
(3) Was it ever intended to benefit anyone but the client? (Sometimes, professionalism certainly benefits lawyers in a way that can greatly benefit, even if indirectly, their clients.)
(4) Do we lawyers cry “professionalism” in a way that conflicts with our clients’ interests–or simply as a pretext, or dodge, to excuse themselves from doing their jobs at a higher level?
(5) If so, what can we do about that?
For some of the answers to these questions, see reprinted from a 2005 “Law Week edition” of The San Diego Daily Transcript, the article “Professionalism Revisited: What About The Client?”. It ends with “rules of professionalism”–but from the client’s perspective. Excerpts from Rules 1, 5 and 6:
1. We come first. Be nice–but if in doubt, use the rules. If you feel you know the lawyers you are dealing with, we will follow your advice and instincts. If you are in doubt about the lawyers, or if it might compromise us to deviate from the formal procedural rules, please stay close to those rules.
5. If you have, or would like to have, a personal relationship with opposing counsel, that’s fine, but don’t let the relationship hurt us–the client. We don’t care as much as you do about your maintaining or developing collegiality with other lawyers in your jurisdiction; in fact, we could not care less.
6. If opposing counsel shows animosity toward you for following the procedural rules and keeping things moving, that is tough. This is not about the lawyers. We hired you to represent us. We would like you to get this done. Again, as your client, we seldom think that aggression and persistence are “unprofessional”.
I’m curious as to what the readers think – when is it time to toss civility and professionalism aside and go for the jugular? At what point do you stop attempting to accommodate opposing counsel and instead forcefully move ahead unilaterally? Is there a set behavior or action that triggers it for you?