Judge Primeaux had this post last week titled “What You Get to Decide as Attorney.” The post examined who gets to decide what in litigation: the lawyer, or the client.

This is an issue for all lawyers, but particularly defense lawyers, as Anderson pointed out in a comment:

This can get particularly annoying when the client is a company that employs its own lawyers (or outside counsel) to ride herd on one’s handling of a case. Lawyers from out of state whose name won’t be on the pleadings can get downright cocky about what a Rambo one ought to be in a court they’ll never set foot in.

Bingo. Here’s a story.

A decade or so ago I was trying a defense case with several other lawyers. Riding herd over us was an in-house attorney from New York. Apparently, they practice law differently in New York. Professionalism is not in vogue.

The in-house lawyer insisted that I ‘go after’ plaintiff’s counsel by personally attacking him. I refused. He got mad. It got heated. I was unwilling to, as Judge Primeaux states, trade my reputation for a fee.

In the end, we won the trial. The in-house lawyer even complemented my cross examinations–even though it wasn’t how they do it in New York.

So did that company ever hire me again? No, they didn’t. Coincidence? Who knows.

Plaintiff lawyers are quick to criticize defense lawyers’ Rambo discovery tactics that–likely–are being driven by the client. “I would never represent a client who tries to tell me how to do my job,” they say. But that’s much easier for a plaintiff lawyer to say who works on one-off cases where the clients almost never repeat.

But the analysis on the defense side can me much tougher:

  • What about for a defense lawyer who does a lot of work for the client?
  • What if the client represents a big chunk of the firm’s business?
  • What if several lawyers and even more support staff basically work entirely for that one client?
  • What if refusing to do what that client says may jeopardize the client keeping the business with the firm?
  • What if losing the client would lead the firm to having to lay-off several associates and support staff?
  • What if families who are counting on the lawyer maintaining a book of business will suffer if the firm loses the client?

How do you weigh it then? It’s a tough decision no matter what.

This is another reason why attorneys should be less inclined to criticize opposing counsel. We aren’t in opposing counsel’s shoes. We don’t know what’s going on. We don’t know that sometimes what the lawyer is doing is client driven–and the lawyer hates it.

And we certainly don’t know what it’s like to be in that lawyer’s shoes. So maybe we should ease up on the criticism of fellow attorneys. It’s a tough profession.

I’m not sure what the worst thing about litigation is: losing or (some) clients. A great client makes practicing a pleasure. A bad client can ruin your life for as long as the case is pending. Dealing with these issues is a tough balancing act. And I don’t have the solution.