Do Lawyers Literally Fight for You?

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.

Your Day In Court

“I don’t care what they offered, I want my day in court”. How many times have you heard something like that? How many times have you wanted to say it? As any trial attorney will tell you, the vast majority of cases don’t go to trial. They end up settling (in civil cases) or pleading (in criminal cases). Trials take time and are expensive. Not to mention you must herd witnesses (often times similar to herding disgruntled cats) to testify. But perhaps the most daunting thing is putting on a case in front of a jury.

Imagine, getting up in front of 40-140 people (yes, first a jury needs to be picked from a pool of people) and select just 14 (a jury is 12 but someone has to be the alternate). Some attorney’s go their whole career without ever doing it. It could be because they are nervous about public speaking, it could be because they don’t want to deal with the hassle. An attorney needs to ask deep, probing, and sensitive questions to each juror (more about Voir Dire in an upcoming post).  And even after finally selecting what seem to be 14 rational people, they sometimes don’t come to the seemingly obvious verdict. I am obliged to say this “There is no slam dunk case”. That case would settle anyways, not go to trial. That’s because jurors are too risky.

Individual jurors are logical. Jurors put together are crazy. Wherever you stand on the political spectrum, in the last 20 years there is some case you probably don’t agree with. OJ Simpson, Michael Jackson, George Zimmerman, to name a few. Entire careers are made on conducting jury panel preparation on big cases. Companies specialize in jury consulting to find out what average joe/jane thinks. Maybe there is some edge or magic formula, but then again maybe its just a crap shoot and you are only playing odds.

So where does that leave you? We have all felt wronged at some point. And when that wrong leads to injury, well maybe its no coincidence that injury contains the word jury. We want to tell someone about it and have it fixed. That would be the role of the jury. Right? Well as i said before, the vast majority of cases don’t make it to trial. Just check out this New York Times article on the subject. While the article is a little old, the trend continues.

So what is the point? Make sure your attorney knows how and when to try a case but also how and when to settle a case. There are always reasons for doing something. Make sure it is the right reason. Being too “gung-ho” either way may ultimately not be in your best interest.