The Kurtz Principle

Are you over-identifying with your clients or allowing your emotions to cloud your legal judgment? Stop it, right now.

The real horror is hurting your clients by over-identifying with them.

Like most Americans, I find few things better than sitting down after Thanksgiving dinner to watch Apocalypse Now. Maybe twice. If somehow you have never seen Apocalypse Now, you should stop reading and watch it right now. I’ll wait.

Near the end of the film, when Martin Sheen’s Captain Willard meets Marlon Brando’s Colonel Kurtz — the rogue officer who Willard has spent most of the film traveling through Vietnam to kill — Kurtz launches into a famous indictment of the U.S. efforts during the Vietnam war. He specifically praises the effectiveness of the Viet Cong, concluding his speech:

If I had ten divisions of those men, then our troubles here would be over very quickly. You have to have men who are moral, and at the same time, who are able to utilize their primordial instincts to kill without feeling, without passion.  Without judgment. Without Judgment.  Because it’s judgment  that defeats us.

Colonel Kurtz was right; moral judgment will make you a worse litigator.

THE NOBLE HISTORY OF RIGHT TO COUNSEL

It shouldn’t be controversial that bringing your personal views to your representation makes you a worse lawyer. Lawyers haven’t been great in recent years at controlling the narrative on this.

Sponsored

But historically, one of the proudest traditions of the law is right to counsel. Not simply in the sense of indigents who can’t afford it — although I was fortunate enough a few years back to litigate a case with the good people of the NYCLU that helped to provide that for many New Yorkers — but unpopular views as well. The ACLU’s consensus greatest monument was defending the Skokie Nazis. In another instance, Frederick Aiken was played by James McAvoy for defending one of the conspirators to kill Lincoln. Of his many accomplishments, John Adams was reportedly proudest of successfully defending the British soldiers responsible for the Boston Massacre. Barristers aren’t even ethically permitted to turn down clients in many situations.

To me, one of the most surprising misconceptions among people who’ve been fortunate enough to avoid lawyers is that good lawyers only take “good cases.” Sophisticated litigants know it’s the opposite: If you have an easy case, a lot of lawyers may be able to get you a result that you’re happy with. But it’s when your back’s up against the wall that you need to call in the big guns.

The same is true for unpopular viewpoints. It’s a cliche, but rightly so: popular speech doesn’t need protection. Crush videos, Westboro Baptist Church, and Gawker need protection. Even if you think crush videos are repulsive, ban them today, and tomorrow downloading information likely to be useful to a terrorist may get you 10 years in prison. (Currently the law in the UK.)

YOU’RE NOT YOUR CLIENT’S FRIEND

Back to blunt practicality: If you’re a yes-man to your client, you’re a bad lawyer. You cannot possibly give your client good advice if you’re agreeing with everything he says. Your client can surely find people who will do so for less money. You are specifically hired to identify problems and to say no when needed, not to cheerfully declare that everything is great.

Sponsored

This extends beyond simply not being a complete lackey, though. If you regularly think how your client is wonderful, and your adversary is evil — or how your arguments are amazingly awesome and your adversary’s arguments are all idiotic — you’re making the same error. You need an emotional distance, or you are doing a great disservice to your client.

This should be an obvious principle. Doctors follow it well. Surgeons avoid operating on relatives, because they know it screws up their judgment. Lawyers tend to be bad at it, perhaps because when working as an advocate, it’s easy to let the emotional or intellectual distance slip. We often hear clients present the most sympathetic version of their events, and it’s very easy when making arguments to convince yourself of them more strongly than if you saw them made by someone else.

But commiserating with your client about how the other side are terrible people or failing to properly critique your arguments isn’t helping anyone except your adversary.

HATING YOUR CLIENT IS ALSO BAD 

Obviously, hating your client is also bad. Unless you take this to unprofessional extremes, it’s actually pretty hard to directly hurt your client this way. But it’s still petty, stupid, and will make you miserable. As I’ve written about before, if you spend all day representing factory fish farms, are convinced that factory fish farming is the most evil thing on earth, and spend your time hating yourself so much that you go home every night to down a fifth of rye while crying, you really should find a new job.

DON’T LET THE JUDGMENT DEFEAT YOU

So this Thanksgiving, between your second and third run-through of Apocalypse Now, consider taking a little break and reflecting on whether you’re over-identifying with your clients or letting your emotions cloud your legal judgment. It’s an easy trap to fall into, so if you are, it’s not the end of the world. But once you identify the problem, it’s time to start working on fixing it. Make it your Thanksgiving resolution to pick up where Colonel Kurtz left off.


Matthew W Schmidt Balestriere FarielloMatthew W. Schmidt has represented and counseled clients at all stages of litigation and in numerous matters including insider trading, fiduciary duty, antitrust law, and civil RICO. He is of counsel at the trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at matthew.w.schmidt@balestrierefariello.com.