I’m all for authenticity in legal writing. But there are some limits.
Those limits kick in right around the time where I can tell the lawyer’s ego is getting in the way of client service and good decision making.
Let’s take a look at what we’re talking about.
methinks it would behoove you to opine as to the rationale upon which your client did engage in the abovementioned conduct within 1 hour of this correspondence, failing which our client will apply forthwith for your client’s beheading
Ego Driven Lettersare you a lawyer that lets their ego write letters?Click To Tweet
No hard and fast rules here, but there are a few signs that a lawyer is letting their ego write their correspondence:
- superlatives – “your client’s case is clearly doomed to fail”;
- language – words like otiose, collogue, methinks and behoove suggest that the writer’s sense of self-importance is tied up with their vocabulary;
- the speed of reply – if you get a 9 paragraph response inside 6 minutes, there’s a good chance they are “shooting from the hip” – never a good idea;
- lack of mentoring – if a practitioner has only ever worked for themselves, then this is often evident in the way they communicate;
- extreme aggression – letters written by ego have a tendency to be extremely aggressive and packed with unnecessary deadlines and threatened actions.
It doesn’t especially bother me* if somebody wants to write “methinks it would behoove you to opine as to the rationale upon which your client did engage in the abovementioned conduct within 1 hour of this correspondence, failing which our client will apply forthwith for your client’s beheading”.
*except the beheading part – that’s uncool.
What concerns me is whether they are doing their client a disservice in the process, or bordering on ethical no-nos.
Which leads nicely on to this… how people justify writing like a git.
The “Passionate Advocate” Justification
A passionate defence of our client’s interests is an important component of legal practice.
Many lawyers use this principle to justify obnoxious behaviour.
To them I say this:
- can you achieve the same result without the obnoxious behaviour?
- has your client specifically instructed you to be as difficult as possible?
- have you explained to your client the strategic pros and cons of being extremely aggressive?
You can passionately and effectively represent your client without calling your opponent names, behaving like a goose, and puffing out your chest at every available opportunity.
If your letter can achieve its legal and strategic goals without engaging in school kid antics, then it’s not “passionate advocacy” – it’s ego.
The “I’ll Throw Them Off Their Game” JustificationDo your job - don't let your ego try and do it for you. It simply doesn't have the qualifications.Click To Tweet
Some people think that writing ultra-aggressive letters packed with hyperbole will somehow imbalance their opposing counsel and throw them off “their game”.
It’s true that you might sometimes get a reaction from your counterpart, rather than a response. For the short term, that might feel like you’ve done your job.
Over the long term though, what do you actually achieve?
Well – first, you clock up lots of fees. Great for you, less great for your client.
Strategically, you usually don’t achieve anything at all. Over the entire matter, these tiny exchanges of self-serving correspondence usually achieve nothing. They are rarely (if ever) necessary for the matter to proceed. They rarely clarify any issues. They rarely “beat down” the other side. They rarely convince anyone to “give up” their case (if anything, they polarise the parties and annoy everybody, reducing the chances of the matter being compromised on sensible terms).
In real terms, the chances that you’ll distract or infuriate anybody so much that the matter simply falls into your client’s lap are so close to zero that you wouldn’t be a dollar on it at the races.
So, in the absence of achieving anything meaningful for your client, your ego driven writing style is just a chance to pat yourself on the back and tell your unsuspecting mates at the pub how you’re so clever.
What’s that called? Ego.
The “War of Attrition” Justification
Perhaps if you send a long, aggressive and threatening letter every other day for the next 19 weeks, your opponent’s client will be worn down and simply give up or run out of money.
But you’re making an assumption here too – that your opposing lawyer is a moron, incapable of discerning your fairly transparent motivations and dealing with it accordingly.
You’re also wasting a huge pile of your client’s money in the process as you try and fling rocks over and over again on a hope that perhaps, just perhaps, they’ll give up.
Will it work? Maybe. It’s true, I’ve seen it work.
But I’ve also seen it fail spectacularly.
So… Keep your Ego in Check
Lawyers have big egos.
We’re well trained, educated and usually think quite highly of ourselves (rightly or wrongly).
But our job isn’t to stroke our own egos or incite our clients to litigious aggression – our job is to represent our clients diligently while serving our duty to the Court and to the administration of justice.
The fact that your clients might like your aggressive letters is irrelevant – for the same reason that the cheering at the Colosseum didn’t make it a good place.
Your sense of satisfaction is also irrelevant.
Do your job, and don’t let your ego try and do it for you. It simply doesn’t have the qualifications.