Edgar Paltzer is an attorney-at-law based in Switzerland who advises clients on the legal aspects of wealth structuring. This article will look at litigation and whether it is really the case that aggressive lawyers outperform their more passive counterparts.
When looking for someone to represent them, be it in a divorce or neighbour dispute, people often place an emphasis on finding a lawyer with a fierce reputation, seeking out aggressive lawyers to fight their corner and get results. However, it is helpful to take a step back and consider the ultimate goal and how it can be achieved in the most effective and least damaging way. For example, when seeking legal representation in a family law matter, rather than talking about ‘winning’ or ‘losing’, the ultimate focus should be achieving successful outcomes for the family.
In such instances, it is generally sensible to try to avoid court wherever possible, as litigation is typically stressful, time-consuming and expensive, with unpredictable outcomes that are often less beneficial to both sides as well as any children involved. In such instances, alternative dispute resolution methods such as negotiation are mediation are often more appropriate, placing the onus on lawyers to not be unnecessarily aggressive and instead be tactical and strategic.
Rather than being aggressive, lawyers need to be assertive, being upfront and direct about their position and goals while communicating in a way that is both respectful and responsible. Although aggression also means being direct and upfront, unlike being assertive it involves communicating in a disrespectful way that oversteps professional courtesy. Aggression implies uncontrolled emotion or anger, leaving the lawyer at risk of being reprimanded by a judge for uncivil behaviour – an outcome that would reflect poorly on both the lawyer and their client.
Assertiveness, on the other hand, is a mainstay of advocates who are in control, enabling them to advance their client’s interests in an effective manner while maintaining professional relationships with other lawyers. In a profession like the law, reputation is all-important. While an aggressive lawyer acts in an antagonistic way, an assertive lawyer acts strategically, making timely, measured proposals and plotting a logical course as they progress their client’s case.
While a common complaint about lawyers is that they are ‘not aggressive enough’, in reality, aggression does not correlate with success. In fact, in many ways aggression can be incredibly detrimental, potentially damaging a client’s case and impeding the parties’ ability to reach an agreement that secures the best possible outcome.