How Nice Guys Finish First
Keenan, Matthew D., Defense Counsel Journal
This article originally appeared in the June 2009 Trial Techniques and Tactics Committee Newsletter.
Any attorney older than 50 grew up in the era when the Hollywood role model for attorneys was Perry Mason, the longest running lawyer show in TV history. A defense lawyer who took cases against long odds, Mason always found a way to exonerate the innocent defendant. Assisted ably by Paul Drake and Della Street, their approach to preparing and defending a case was old school. And along the way, there was always the utmost civility and professionalism between Mason and the prosecutor, Hamilton Burger, even though Burger's track record was akin to the Harlem Globetrotters' opponent, the Washington Generals.
Following Mason was Matlock, which ran from 1986-1992. Starring Andy Griffith, Matlock was a southern gentleman sporting seersucker suits and bright ties, his folksy manner won viewers and juries over. And then along came L.A. Law, and the public's image of the legal profession, and lawyers, was never again the same. The show changed many things, but one unquestionably was to take our noble profession and present it as a business, with interpersonal conflicts serving as the centerpiece of virtually every plot. And droves of students wanted to be the next Arnie Becker, a divorce lawyer who craved driving Bentleys and extracting revenge from is rivals. Personal destruction was sport. It was more soap opera than anything else. And it created a culture that transformed, and some would say, disfigured, our profession.
Today the evidence is pretty clear that our profession is suffering from a spate of bad behavior. Almost 70% of lawyers surveyed for "The Pulse of the Legal Profession," a comprehensive 2006 ABA study surveying the opinions of 800 lawyers, believe that "lawyers have become less civil to each other over time." Anecdotal evidence reinforces this conclusion as well. It's no surprise that happiness in the profession is sliding as well. The New York Times reported in January 2008 that lawyers, as well as doctors, find less satisfaction in their work, and quoting an ABA Survey, stated "Forty-four percent of lawyers recently surveyed by the ABA said they would not recommend the profession to a young person." (43)
You can look for other evidence of a decline of civility. In 2005, before a high school civics class, Senate President Harry Reid called President Bush a "loser" and no one flinched. The next year, Venezuela President Hugo Chavez joined the fray likening President Bush to the devil.
And how many of us have received requests from friends or other attorneys requesting counsel, often in domestic relations cases, for the proverbial "pit bull." Or maybe not a jerk, but an aggressive, obnoxious, contentious zealot to do the client's heavy lifting. Some potential clients obviously think they need a jerk on their side. And with the Supreme Court allowing advertising by lawyers, the race to the bottom started many years ago, with lawyers invoking imagery that would hardly represent the legacy of Mason or Matlock.
As reported in a February, 2008 Wall Street Journal article, the Florida bar "filed a complaint in 2004 against a Fort Lauderdale personal-injury attorney Marc Andrew Chandler over advertisements that featured a pit bull wearing a spiked collar. (44) The Florida Supreme Court sided with the Bar in 2005, ruling that pit bulls conjure up images of viciousness. "Were we to approve," the court wrote, "images of sharks, wolves, crocodiles, and piranhas could follow." (45) Attorneys who used 1-800-PITBULL were disciplined by the Florida Supreme Court.
Which raises the question--are aggressive, obnoxious attorneys successful? Does that represent a successful trial strategy? In other words, do nice guys win out over the jerks of the world? Do juries like pit bulls? And do they consider their style effective? Turns out, what evidence we have, suggests, no, they don't. …