By Paul M. Floyd
Finding a personal style of lawyering that’s effective over time can be difficult for lawyers of all ages. In a world where TV and movies often glorify uncivil, hard-nosed, ruthless lawyers (a la Saul Goodman, fka Jimmy McGill, from Better Call Saul and Breaking Bad) as the epitome of success, it can be tempting to emulate these portrayals. In the popular imagination, the lawyer who is kind, forgiving, and empathetic when dealing with opposing counsel does not produce the same drama or pizzazz that the nasty lawyer does.
In reality, there are numerous advantages to being known as “the nice lawyer.” This approach to practicing law leads to better health and well-being, fosters deeper and more lasting friendships, and ultimately results in greater financial success over the long term. And, good news, there are proven strategies from the field of game theory we can employ to be nicer lawyers.
Better lawyering
If you ask for deposition advice from a seasoned lawyer, they will often tell you to “be nice.” If you want to elicit information from someone, the best strategy is to make them feel comfortable and think of you favorably. People who feel attacked will tense up and close down, becoming unwilling to share information with you unless you drag it out of them. The same can be said for interviewing witnesses, getting favorable treatment from court clerks, and working with experts.
Financial success
Nasty lawyers get a reputation from their negative relational style that is hard to break even if they later want to. This is because they are repeatedly hired as the “gunslinger” to be aggressive and mean-spirited (unkind, malicious, or lacking in compassion and empathy) and their reputation is set. In contrast, the “nice lawyer” can achieve success by focusing on collaboration and problem-solving. Just as importantly, the nice lawyer will connect with opposing counsel, mediators, and others, which leads to more referrals, and repeat business, leading to greater financial success in the legal profession.1 My experience has been that lawyers uniformly want to work for and collaborate with the nice lawyer and not the nasty one. As team collaboration becomes more the norm, having the reputation of being the nice lawyer on the team can be critical to being a successful lawyer in the 21st Century.
Better health and well-being
While the aggressive, confrontational approach of the “nasty lawyer” may yield short-term victories, it often leads to isolation and a cycle of conflict and alienation that can be detrimental to the attorney’s well-being and health. Aggressive lawyers often use their behavior to mask their own anxieties and, perhaps ironically, their own lack of self-esteem. Lawyers who maintain a respectful and considerate demeanor experience lower stress levels, reduced burnout, and a higher overall quality of life.2 This healthier approach to the legal profession ensures longevity and resilience in a demanding career.
Deeper, longer-lasting friendships
Building meaningful relationships with colleagues, clients, and even opposing counsel is a hallmark of the “nice lawyer.” By being gracious to opposing counsel, lawyers can foster trust and build enduring relationships within the practice, sometimes resulting in lasting friendships.
Proven tactics for becoming nicer
If you are considering how you might become known as a nice lawyer, there are a number of proven tactics that you might adopt.
One approach is to adopt reciprocal altruism, a relational style that you can employ to build your reputation as a nice lawyer. When you are tempted to respond tit-for-tat (“an eye for an eye”), consider the strategy of tit-for-two-tats. When your opposing counsel’s behavior is unprofessional, consider responding, if possible, with a kind gesture or word and wait and see how counsel responds. Individuals often adapt their behaviors to mirror those of their peers, and your kind reply may well prompt your opponent to respond in kind.
If the approach of reciprocal altruism (tit-for-two-tat) does not work, it might be better to stick to writing letters instead of making phone calls. Taking a break before sending a quick, heated response can help you cool off. It’s also a good idea to have someone else read your letters to ensure they’re professional and on point, without getting sidetracked or diverted by red herrings. Sometimes it’s best to just ignore the other lawyer’s tricks and focus on preparing your case, using your effort in a positive way to be a better lawyer.
Nice lawyers finish first
So, the next time you have the urge to be uncivil to opposing counsel, remember the benefits of being a nice lawyer and the lesson drawn from the game-theory tactic known as tit-for-two-tat.
Instead of immediately reciprocating unkindness or meanness from your opponent, opt for forgiveness and graciousness as your initial response. This approach may lead to a positive response in kind from the other lawyer (tit for tat), and, at the very least, it will further establish your reputation as one of the nice lawyers who finish first.
Paul M. Floyd is one of the founding partners of Wallen-Friedman & Floyd, PA, a business and litigation boutique law firm located in Minneapolis. Paul has been the president of the HCBA, HCBF, and the Minnesota Chapter of the Federal Bar Association. He lives with his wife, Donna, in Roseville, along with their two cats.
Notes
1 See Heidi K. Gardner, The Collaboration Imperative for Today’s Law Firms: Leading High-Performance Teamwork for Maximum Benefit, published in Managing Talent for Success: Talent Development in Law Firms. Edited by R. Normand-Hochman. London, UK: Globe Business Publishing Ltd, 2013.
2 Ethically Speaking: Linking Civility and Well-Being (12/13/2022), available at: https://www.lawsociety.ab.ca/ethically-speaking-linking-civility-and-well-being/ (last visited 11/17/2023).