In litigation and in disputed transactional work, it is the clients, not the lawyers, who are adverse. Some litigation and transactional documents and arguments, however, seem to suggest otherwise. They are phrased in personal terms, as though the dispute was all about the lawyers.
We all have received letters from lawyers improperly referring to us personally, such as, “your position has no merit.” In court, we hear improper personal references like, “Plaintiff’s counsel Mr. Doe is quite wrong when he contends …” or “Defense counsel Ms. Roe would like to escape the contract’s effect but she cannot because … .” Such ad hominem references hurt the cause of the lawyer’s client. They misdirect the focus away from the issue at hand towards the lawyers. They betray an immature and undignified inability to be objective and not to take things personally. They are a tacit admission that the opposing lawyer made a good point and struck a raw nerve. They are code for a lack of confidence about the argument being made. They are unprofessional and uncivil.
Referring personally to oneself has the same undesirable effect. “I believe that … .” Or, “My research shows that … .” Or, worst of all, “If I were you I’d … .”
Let’s keep our eye on the ball. It is the client’s interests we are duty bound to advance. Poking at the other lawyer personally and communicating in the first person do not help the client and in fact make things worse for the client.
Depersonalize. Target arguments at the opposing party, not at the opposing lawyer. The advocacy will be more focused, mature, dignified, confident, professional, and civil—and best of all, more persuasive—all to the client’s benefit.
Johnson, Killen & Seiler, PA