Friday, July 31, 2015


I've had an eventful work week! Wednesday I argued before the Court of Appeals for the first time. It was very eventful to me because a land use attorney of 40 years was my opponent and I, having zero land use experience, got to correct him on an issue of law that was critical to our position. The Court asked me if there was authority for my position. I think my excitement may have been showing too much as I referred the Court to the exact page and line of my opponent's own brief to support my position. It's very rare, the occasion on which I get to experience a perfectly-timed legal zinger. And I'm not going to felt AMAZING.

I've always hated public speaking and I've always been very shy and nervous when I am given attention in front of a crowd. I've been dreading the hearing all month, slowly counting down the days to when it would be behind me. But I came away from the hearing convinced that there is no better high than engaging in a craftful, well-prepared legal sparring match. I just may have acquired a taste for the blood sport.

In addition to this hearing, I was forced out of my comfort zone on several other occasions this week. It's a funny but I'm continually surprised to find that I am feeling more comfortable and confident in my role and equally surprised to find that clients and reporters and other attorneys take me seriously and ask my opinion.

Despite this growing confidence, in the past two weeks I've frequently found myself under critique or judgment. Several times in the past two weeks, my own coworkers have accused me of being "too nice." But it's never in a positive way. It's in a passive aggressive or condescending way. I try not to let it bother me but I have yet to find a good way to respond to this criticism. When I try to defend myself or even ignore it, I feel like I come across as weak or defensive, which tends to support my critic's point. So what else can I do? I'm not sure.

I'm not bothered by the fact that people consider me to be nice. I'm bothered by the fact that my coworkers associate niceness with weakness or inferiority. It's as if they are saying I can't be an effective litigator when I react to incivility or unreasonableness with civility. That being agreeable is akin to being a pushover. As if, openmindedness and the willingness to thoughtfully consider the position of the other side renders me incompetent. Or arrogance is a requirement for being a successful advocate. This bothers me VERY much.

Dear experienced and learned colleagues in the legal profession. It is not a sign of weakness to NOT be an asshole. Thank you.

First of all, to be an effective advocate, you have to be true to yourself. If I tried to be overly confident, unwaivering, or bull-headed, I would not be doing my client any favors. That is just not who I am. I can't be effective if I'm not being genuine. I don't know how to be that way (and I have no desire to learn). That's not how I'm effective. Recently, I drafted a letter to opposing counsel regarding a disagreement we were having. I was firm in my position while also attempting to extend an olive branch and find common ground and understanding. My letter was criticized at being "too nice." It was suggested that I revise it to include stronger, more bullish words. But I have to work with this attorney for several more months. I don't want to start off the case that way. I'd never try to solve the situation that way in real life (unless this guy just obviously could never be reasonable). And if he ever called me, there is no way I could back up the very strong tone and harsh words of the letter with my own voice. I'm successful as an attorney when I can be myself and playing up my own strengths- diplomacy, cooperation, open-mindedness. Everyone has a style that works for them. And it really bothers me that people assume there is only one way to accomplish things- by being an a-hole.

It also bothers me that people assume I'm "too nice" because I'm "inexperienced" or a "new attorney" rather than as a conscious decision. Sure, I may change the way I do things as I gain more experience. But my "niceness" is not a result of ignorance or inexperience. It's a conscious decision that reflects how I would like my profession to change for the better. It's also founded in my personal code of ethics and the professional reputation I would like to build. And finally, it's strategic. Sometimes it IS called for to be harsh and unwaivering. But in my own experience that is not true at least 80% of the time (maybe even 90%).

To end my rant, I would like to mention that it's completely fine to give on the little issues. Fighting every single minute issue is generally not in my interest or my client's interest. If an attorney asks me to do something that I'm not required to do but doesn't disadvantage or burden me? Why the hell not? It's a way to build good will, a good relationship with opposing counsel, and earn reciprocal professional courtesies. Machiavelli may vehemently disagree with me on these issues. But the law is not just about strong advocacy. It's also about candor. And professionalism.

Yes, there is power behind the law. But there is also humanity. Law is, in many significant ways, about co-existence and rectifying wrongs. Don't get me wrong. I'm not entirely an idealist. I know that attorneys and their clients can use the laws and the rules and even the code of ethics unfairly to their own advantage. I also believe that sometimes the ends justifies the means. But if winning and being a successful litigator necessitates losing sight of humanity and civility and always treating your opponent as an enemy, then I would seriously have to reconsider my profession.

I know I'm young. And I may be naive. But just maybe I've made an actual conscious and strategic decision after having carefully weighing all the options. No doubt I'm not as strong or experienced as others. But maybe I'm just strong enough to remember that the opponents on the other side of the courtroom are just people like me. Maybe I'm just experienced enough to know that sometimes being bullheaded only leaves you at the end of a harshly-litigated case with a bitter taste in your mouth. And maybe being nice is actually my legal superpower?


  1. LOVE this. And congratulations on the zinger - what a fantastic moment!

  2. Amen. I heard a great talk by a federal judge last month where he railed into lawyers' needlessly adversarial discovery practices (objecting to everything at depos, boilerplate objections to all requests, being jack---es). He distinguished between litigators (who he saw as stupidly adversarial) and trial lawyers (who knew when to compromise and get things done). It was affirmation for your point - the best lawyers aren't necessarily (or even ever!) the nastiest ones.