012 – Adversarial Relations

You’re always paranoid as a trial lawyer, at least you should be.  Indeed, if you’re not paranoid as a trial lawyer you’re not doing something right.  The entire legal system is based on adversarial and conflictual relationships, the myth being that by throwing two people with opposing views into an arena that the truth will emerge victorious.  I don’t think it works that way, but I also really don’t know a better way to resolve conflicts.  And neither do you.  So if you’re not paranoid, if you’re not worried someone is trying to best you as a lawyer, you dramatically increase your odds of being hurt.  I didn’t quite understand this when I started practicing law, but it is intensely and essentially true.  And I learned the lesson quickly.

One of the amazing things about these adversarial relationships in the law is that they do not really have to be antagonistic.  Oh, they may well be and often are, but it is not integral to the practice.  Think of boxers trying to beat one another, to hurt one another, to score the most points, or knock the other man senseless.  Yet when the fight is over the two fighters shake hands with one another, honored that their adversary had given all that he had to the battle, win or lose, so too football or soccer games.  Give it your all and shake hands at the end of the game.  Someday you may be back in the arena with that very same adversary now on your team.  What goes around comes around.

“So don’t yell at me,” I tell the lawyer on the other end of the phone line.  “And don’t be snooty either.  If you think that’s efficacious in front of a jury feel free to do so, but you and I are just talking to one another and there is no way you can bully or threaten me.  Just cite the law and the facts correctly and give me your perspective or spin as to the merits of your position without the dramatics.  We’re talking probabilities here.  Of course I understand the weakness in my case.  I’d be a complete idiot if I didn’t see the weaknesses of my position.  The absolutely best offense in the law is a defense.  I get it.  But don’t try to bully me into submission, because, unless you’re an absolute rookie, you know that no case is a guaranteed winner or a guaranteed loser and the best we can usually do for our clients is reach some understanding regarding the realistic odds and a more or less fair outcome.  So do me a favor, imagine I know the weaknesses of my case, and know them well, and help us along by acknowledging that you understand the strengths of my case and the weakness of yours.”  Hey, that’s my rap.

It is the coin of my realm and what separates wheat from chaff.  Any lawyer who says he has never lost a case, or can guarantee the outcome of a case, just hasn’t put in the time.  Or has a connection that is very dirty.  And I hate dirt.  That’s why I try so hard to be honest.  I know that sounds like a bit of an oxymoron coming from a lawyer, but it’s not.  I know the other lawyer will bend the truth to gain a victory, will stretch the rules, and will take advantage of loopholes and of my ignorance.  I do the same.  We call that a clean fight, a fight that follows established rules of conduct.  It is when the fight isn’t clean that the greatest danger arises.

All this talk about relationships between lawyers does not necessarily apply to the lawyer’s clients who may lie and cheat all the time in the name of self-protection and the lawyer may never know.  Indeed, if you don’t want to know, don’t ask.  With the police the rules of the game become even stranger.  Police are professional witnesses, like paid expert witnesses.  They have a position and a goal and will go to extremes to achieve it.  It is jokingly called “testilying” and it goes on all the time, because the police do not like to lose, because they are ridiculously self-righteous, and because they believe they know right from wrong and have an expert’s sense of what “justice” is, and it may not be what happens in a courtroom.