Biglaw, Depositions, In-House Counsel, Litigators

Inside Straight: Is Our Lawyer Aggressive Enough?

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Why do so many people think that you must be a blowhard to be an effective litigator?

I’ve recently heard several tales of business folks (or in-house lawyers) worrying that outside counsel is not aggressive enough. What prompts the concern is the lawyer’s performance during a conference call or at a meeting: The lawyer is civilized. The lawyer speaks quietly, asks probing questions, gives intelligent advice, and appears to be an effective advocate.

After the meeting, one of the participants says: “Are you sure we should use that guy? He doesn’t seem very aggressive.”

Remarkably (at least to me), I’ve heard the same thing at law firms. I’ve heard transactional lawyers wonder about litigators who are calm and intelligent at the lunch table: “He’s such a nice guy. I’m not sure I’d trust him in court.”

What’s my reaction? On the one hand, we can’t ignore perceptions. If a lawyer is so low-key that he doesn’t inspire confidence, then that is a legitimate concern. If I don’t trust the lawyer who’ll represent me at trial to defend me during a vigorous cross-examination, then that’s a real issue; we shouldn’t hire that lawyer. Confidence matters.

On the other hand, if the concern is simply that the litigator is not a blowhard — the lawyer speaks quietly and intelligently during business meetings, where there’s no need for bluster — then I have a very different reaction. In fact, I have three reactions:

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First, having a larger-than-life personality does not mean that you’re a good litigator. Loud is not necessarily bad; it just isn’t a substitute for good. Some of the finest litigators I’ve known have been low-key people who would quietly and methodically unearth great legal theories and disembowel witnesses on cross. No muss, no fuss — just victory.

Second, people often have different personalities in different situations. The college professor who’s so commanding in a classroom may be a very different person when he’s pulled over for speeding at midnight on Friday night. The partner who berates associates in private may be charmingly smooth when he’s chatting with the CEO of the big client. The person who’s calm in a conference room may be entirely able to deliver a hot blast by telephone (or in front of a jury) when it’s necessary. Don’t judge people after you’ve observed only one of the many roles they play.

Third, being a blowhard can in fact undermine a lawyer’s effectiveness. As a client, I really don’t need to spend money on tangential discovery disputes caused by lawyers with too much testosterone being unable to get along. Being civilized can reduce costs and help speed a case to resolution.

Finally, because I’m an old, doddering fool who just can’t resist, here’s a story to illustrate my point:

It’s 1996, and my then-partner, Rick Werder (then at Jones Day; now at Quinn Emanuel; then and now, a very fine lawyer) and I are defending a mass tort. Because it’s a mass tort, there are 20 or 30 lawyers who found insurance companies to foot their bills who are traveling around the country watching Werder and me (and a few other lawyers at other firms) depose key witnesses. (Werder and I affectionately referred to that crowd as “the malingerers.”) I’m finishing up the second day of deposing the plaintiffs’ expert bioethicist in one conference room; Werder will be starting with the plaintiffs’ expert orthopedic surgeon in the afternoon.

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The bioethicist had opined that, because of a supposed technical glitch in the informed consent process, physicians who performed a certain state-of-the-art surgical procedure were engaged in conduct that was analogous to “the experimentation conducted at Nazi concentration camps during World War II.” The expert and I spent part of the morning quietly and methodically reviewing the specifics of the “experiments” that Dr. Josef Mengele and others had conducted at Auschwitz and elsewhere, including amputating limbs without anesthesia, inducing hypothermia, and the like. I never raised my voice but, by the end of the morning, the expert had conceded that he had over-reached, withdrawn his opinion on informed consent, and acknowledged the possibility that he should perhaps apologize for having given his original opinion. (As I recall, plaintiffs’ counsel objected when I tried to extract an actual apology on the record.)

When the deposition ended, I joined a bunch of the malingerers who were heading into the other conference room to watch Werder do his bit. (My plane didn’t leave town for a couple of hours, so I had a little time.) Werder went after the orthopod quietly and methodically, hacking off testimonial body parts left and right. At the first break, one of the malingerers came over to tell me: “You and Werder are living proof that you don’t have to raise your voice to badger a witness.”

I was proud then; I remember it now. “Loud” is not necessarily “good.” We should strive not to let people confuse the two.

Mark Herrmann is the Vice President and Chief Counsel – Litigation at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law (affiliate link). You can reach him by email at inhouse@abovethelaw.com.

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