A common phrase by lawyers promoting their services is that they will “fight for you.” It could be a figure of speech, but in a case from 1992 out of Texas, the lawyers almost came to blows during a deposition. Click the short video to watch it happen.
Maybe that is just how Texans try cases? But there also is some truth in the phrase to ‘fight for your client’. It is an adversarial system after all. And it is not just plaintiff/prosecution vs the defense. Sometimes, you might have to fight the judge too and it might get caught on camera like it did with this public defender in Florida.
Ok, so there are a few exceptions where lawyers and judges get out of control and resort to fisticuffs, but that doesn’t mean all lawyers are brimming with testosterone itching for a fight, right? Right, in fact, studies have shown that lawyers who have higher levels of testosterone (men and women) are, you guessed it, trial lawyers! On a measurable, physiological level, trial lawyers are different.
Now, a correlation doesn’t prove causation. Maybe these individuals already had high testosterone levels and thats why they became trial lawyers. Or, maybe, there is some unknown factor that selects for trial lawyers with high testosterone. The classic example of correlation does not equal causation is the correlation between sexual assault rates and ice cream sales. They both rise at the same time…in the summer. At this point, we can’t say eating ice cream causes sexual assaults just as we can’t say being a trial lawyer causes increased testosterone.
What I can say is that when you are face to face with someone and they are alleging you have done something wrong, or that you didn’t follow the rules, your heart gets pumping. If you don’t have years of practice managing your emotions, you might be inclined to become incensed and lose your composure. But if you can develop your skill for composure and thinking on your feet, you can take the wind out of an opponents sails. Let me offer an example.
A little background, when I was a prosecutor, there was a defense attorney known for coming right up to the line of harassing a witness during their interview statements. (Think of the video at the top) This statement was no different. After about an hour, the witness had enough and left despite defense claiming they did not finish their questions. The defense made a motion to exclude the witness because they couldn’t complete the statement and during the hearing, alleged my witness smelled of marijuana during the witness statement. I can honestly say I did not smell marijuana and relayed that to the court. Defense response was that I either was not familiar with the smell or that I was being disingenuous (lying) to the court. Instead of becoming upset that I was basically called a liar in open court, I reiterated that I didn’t smell anything, but, perhaps, was not as familiar with the smell of marijuana as the defense attorney was. The judge laughed and denied defense’s motion.
Now an attorney needs to know their audience, and this response might not work with the Supreme Court, but then again, you probably wouldn’t be called a liar by a fellow attorney in the Supreme Court unless there was some pretty good evidence for it. In retrospect, that older attorney was probably trying to get a rise out of me, but it backfired. The only way I was able to keep my calm despite the surging testosterone, was because I had felt that surge before in numerous other hearings and learned how to handle it. In this particular situation the best option was not to fight, but deflect.
So do you want a lawyer who fights or who deflects? Both. You want an attorney who can decide when it is time to push and when it is time to step back and let the opposing side whiff. So be careful of those who want to ‘sue the pants off’ someone else. Overzealous litigation can not only be the wrong approach, but also end up running up the legal bills. Then it might be the client who ends up feeling like the one with their pants down.