I was recently on a so-called meet and confer call (a term only a lawyer could love), which here, as is often, was a required conversation for adversaries to have before either could make a motion about a given issue. My partner was handling it. And, bluntly, he was not so nice to the adversary. She wasn’t giving good reasons as to why her client was not forthcoming with certain discovery. My partner wasn’t going out of his way to be difficult. But he sure wasn’t going out of his way to be accommodating.
After the call a more junior colleague noted how harsh my partner had been. But I noted, very simply, that being harsh, or not, was not my partner’s job. His job was to advocate for the client. And in these circumstances being harsh fit that bill.
But I have found the younger colleague’s questions to be typically asked, typical especially, frankly, by younger colleagues: Can’t you be nice?
Well, no. No need generally to be a jerk (unless really needed). But as lawyers, we need to remember our jobs. We are here to win for our clients. A huge part of that is counseling our clients. But part of that, a big part for trial lawyers like us, is fighting on behalf of our clients.
The motivating question is how do we win for our client. And, indeed, it is not an ego-driven one, but a client-focused one: what does it mean to win for the client? And how do I do that within the bounds of morality, ethics, and good judgment?
That can mean being so direct with an adversary that you are frankly not nice. Certainly that means not generally caring whether your adversary thinks you’re nice or not. And that is what the younger colleague was responding to. We all like to be liked. But to win for the client can very much mean not being liked.
Be professional. Follow the rules. Above all, be a good person. But don’t worry about being nice, or being thought of as nice. Focus on winning for the client.
Matthew 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 a partner 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 [email protected].