It’s not exactly a surprise that the legal profession is not viewed favorably among most Americans. Some lawyers attribute our fall from the public’s grace to the rise of advertising; some blame the billable hour. Others cite the dissatisfaction on the growing complexity of the law and the added pressure and expense that it brings. While these are definitely issues that may need attention, I have come to the conclusion that the decline of civility among fellow lawyers is the larger problem—and may be the key to solving the others.
Having spent five years in the practice of law completely devoted to civil and criminal litigation, I’ve seen quite a range of professional demeanors on the other side of podium. Certainly, my mere five years cannot compare to the experience of my colleagues with many more years under their legal belts, but I have come to notice a disturbing trend in my time thus far.
There is a growing lack of civility in the legal world. How often do we as lawyers lament that our own profession has grown uncivil, harsh, and overly stressful? Fortunately, I have not seen obviously unethical tactics like dishonesty, withholding mandatory disclosures, and downright abuse of power, although I’m sure those occur.
What really diminishes the joy of practicing law is the tactic of pitbull lawyering.
Pitbull lawyering occurs when lawyers use unpleasant discourse as a professional tactic. When counsel raises his voice at his adversary, that’s pitbull lawyering. When an attorney would rather instigate further conflict in the case to inflate his client’s bill, or strangle the financial resources of the other side, that’s pitbull lawyering. When discovery is intentionally expanded way beyond the scope of the real issues in dispute, that’s pitbull lawyering.
Each of us with experience in contentious litigation is probably guilty of the use of pitbull lawyering tactics at some point in our careers. Often, our clients encourage it. However, it is in danger of destroying our profession. Pitbull lawyering stresses us out to an unnecessary extent. It creates daily conflict that causes many lawyers to resent their career choice, drives us to drink or do drugs, overmedicate, commit suicide and exit this noble profession in droves. But, it doesn’t have to be this way. We all just need a slight change in perspective.
On its face, pitbull lawyering appears to be a position of strength. This is why clients often seek the trait in selecting their advocate. However, clients don’t always know what is best for them in their legal disputes—that’s why they need us. And in this case, the clients are wrong. Pitbull lawyering is actually a position of weakness. It screams insecurity and values the loudest argument above the soundest one. It often intensifies the conflict, and any initial pleasure the client may derive from the satisfaction of having a pitbull lawyer is fleeting. At the end of the day, the client is left with an inflated bill due to an exacerbated conflict and nothing to show for it in the results. Ultimately, the tactic fails everyone.
Any law school ethics class or CLE on the topic will note the unethical nature of pitbull lawyering, sometimes referred to as “Rambo tactics.” If we are theoretically against it as a profession, why does it so often creep into our real world litigation? I think it is because those well-intentioned law professors and CLE presenters rarely, if ever, demonstrate to us an alternative. When the pressure is on, and the client is pushing for his advocate to be a pitbull, even the best of us may falter. We may be tempted to try to overpower our opponent rather than persuade him or her.
Here is an alternative: We should view our profession as one of conflict resolution, not conflict instigation. Certainly, we will advocate for our clients. Certainly, we will remain loyal to our clients’ non-frivolous positions. Certainly, we will not allow our clients to be taken advantage of by the government or the other party. However, our chief aim should always be to resolve the dispute as quickly, efficiently, and amicably as possible within the bounds of our duty of loyalty to our clients’ best interests. This is the position of strength. This is the key to restoring civility and satisfaction to our profession.
I bet that this alternative attitude will precede sharp decreases in professional dissatisfaction, substance abuse, and depression among members of our bar. Best of all, it will result in efficient outcomes for the judiciary and our clients.
I would like to see the Colorado Supreme Court or the DBA establish a committee to explore how we can incentivize the implementation of this notion throughout our courtrooms. We owe it to our clients. We owe it to ourselves. We owe it to this noble profession.
By Keith Lewis, a Colorado and Georgia licensed attorney with a 100% trial and appellate litigation practice located in Denver.