So Why Do Lawyers Behave That Way?
The most obvious answer is confusing zealous advocacy for bad behavior. Plenty of lawyers seem to have internalized that the way to advance your client’s interests aggressively is by being loud, overbearing, intimidating, or worse, abusive. And in the conference room in a tense negotiation or deposition, it often seems like there are few consequences for lawyers who engage in this type of bad behavior.
But it is also true that some attorneys do a poor job of regulating their own emotions. They allow their desire to win to overcome their better judgment. Many take setbacks personally, even though they clearly shouldn’t. Or they identify so closely with their client’s cause that they cannot approach their work dispassionately or examine negative developments objectively. Other attorneys believe dominating others is a necessary prerequisite to victory, or a sure-fire way to neutralize an otherwise effective witness who is providing harmful testimony. And it would be irresponsible to ignore the impact that COVID has had on mentorship of younger attorneys. If they haven’t had good role models they can see in person and emulate, they may easily fall into the trap of thinking they need to appear tough and confident (meaning argumentative and loud) in order to convince others that they are capable.
The Consequences of Lawyers Behaving Badly
To lawyers who don’t spend a lot of time in trial, the pitfalls of losing your temper might not be obvious. Opposing attorneys might threaten to call the judge during a deposition when the defending attorney is being obstreperous or when the questioning attorney badgers the witness, but few ever do. The badly behaving attorney is often on safe ground calling that bluff. And in day-to-day interactions, like meet and confer calls to resolve routine discovery disputes, complaints that an attorney is being unreasonable or uncivil can devolve into nothing more than finger pointing that judges and magistrates are hard-pressed to sort out.
But while bullying tactics can be hard to counter outside the courtroom, once you’re in trial, all bets are off for the badly behaving lawyers. Neither judges nor juries have patience for lawyers who shout, talk over witnesses, condescend, behave uncivilly, or are otherwise rude. Judges are well aware that an attorney’s volume and overbearing nature bear no relationship to the merits of their client’s case. Good judges maintain control of their courtroom and sharply limit the ability of attorneys to behave badly without consequences. Juries typically take their cues from the judge – they can sense when a judge has lost her patience with an intemperate attorney and they assess the lawyer – and his client – more harshly as a result. Additionally, jurors are acutely aware of the power imbalance between witnesses and examining lawyers. They know that the lawyer gets to ask the questions, directs attention only to the parts of his case he wants to talk about, and controls the documents the witness gets to see. When the attorney abuses their advantage over a witness (particularly a witness who seems polite and cooperative), it leaves jurors with a bad taste in their mouths. And if the jurors dislike a lawyer, it will be harder for the lawyer to build goodwill with them and convince the jurors to be open to her arguments. Her client’s case could very well suffer not based on the merits, but because the jurors don’t like the client’s advocate.
Experienced Trial Lawyers Know Better
One of the best lessons a young trial lawyer can internalize is the need to maintain professionalism and civility under all circumstances. No matter how much a lawyer disagrees with a ruling, no matter how difficult a witness is being, they need to maintain their cool. There is nothing wrong with an advocate connecting with the jury on an emotional level – many cases turn on our sense of fairness and justice after all – but a lawyer cannot seem to be ruled by his emotions. The experienced trial lawyer knows that the evidence and the persuasive force of his argument, not a combative nature, make his case for him. Not only will the attorney make better decisions when he isn’t overcome by his emotions, but his professionalism will make a positive impression on those who can actually affect the outcome of his case – the judge and the jurors.
Civility is an ethical obligation for all attorneys. But it is also the right move strategically. Unlike bluster and anger, civility is the ultimate mark of confidence. A capable and well-prepared lawyer doesn’t need to lose her temper to make her point. A lawyer with command of the law and the facts is one who is also in control of his emotions. Jurors respond well to lawyers who demonstrate professionalism and civility. While TV trials are full of blowhards and bullies, the unflappable and gracious advocate is the one who gets the job done in real life.