Lawyers, Litigation/Trial Law

5. Lawyers: The Lawyer as Advocate

I believe advocacy is an attitude. Some people seem to be born with it, others have to develop it, and some never get it. Advocacy is an attitude of loyalty and a willingness to struggle. Sometimes it’s loyalty to what’s fair and right. At other times it’s loyalty to another human being who is in need of protection. Advocacy is not limited to lawyers or the legal profession. You see it even in children on the playground who will intervene, sometimes at their own peril, to stop a bully from beating up a smaller child.

Advocacy is commonly found in parents who will do all manner of things to protect their children. Good doctors advocate that their patients stop smoking. A teacher who goes the extra mile to make sure the slow learner knows how to read is definitely an advocate.

By the very nature of what lawyers do, advocacy is a must. A good legal advocate is not the person who brags and huffs and puffs and puts on a big show; rather, it’s the lawyer who privately and internally commits himself or herself to the idea that nobody is going to run over his or her client. Sometimes it means going toe-to-toe like everyone sees on television and thinks that is the way real lawyers do it.

But, more often than not, to be an advocate means coming in early and staying late to get out a restraining order or making the extra phone call to make sure that something really is going to happen or checking a document twice to make sure that the client really is protected or even discouraging an angry client determined to go to court from doing so. Yes, it’s mostly boring stuff that nobody sees, but it makes a difference. As an old lawyer told me when I was a new lawyer, “To be a good lawyer you usually don’t need to be a hero, but every day and always you must struggle to protect your client.” That lawyer was a real advocate. It’s difficult to think of a more important role for a lawyer than as advocate.

After all, the American court system is referred to as an adversary system. This ought to be a sufficient hint that you probably are going to be in trouble if you show up with someone who is not going to fight for you. The right to be represented by a lawyer is so important that in criminal cases it is guaranteed by the United States Constitution.

Many years ago, in my early practice as a prosecutor and criminal defense lawyer, I became convinced that there is only one thing worse than not having a lawyer; that is having a lawyer who will not or cannot fight for you. The very essence of lawyering is fighting for and protecting the client’s interest. Even if, at the time you hire a lawyer, you don’t think your case is going to court, by the very act of retaining a lawyer, you should be buying an insurance policy insuring that, if push comes to shove, your interest will be protected. The importance of having a lawyer who is capable of trying your case cannot be overemphasized, because the bottom line in our legal system is a trial in the courtroom. As is stated elsewhere in this book, most sane people want to avoid trials, if possible. But, because avoiding a trial is not always possible, if you don’t have a lawyer who is capable of trying your case, you’re placing yourself in the awkward position of running a bluff.

Moreover, you misunderstand the legal system if you think your lawyer acts as advocate only when you are in the courtroom. Clients come to lawyers because they are vulnerable right then, not just months later when their case comes to trial. A good lawyer acts as advocate for his or her client from the moment the lawyer is hired. When you are represented by a lawyer, you are negotiating from a prepared and informed position. You are putting everyone on notice that you are taking responsibility for yourself and your own business and that you demand to be treated with adequate respect, honesty, and fairness. There is an expression among lawyers that the best way to settle your case and avoid a trial is to prepare for trial. Therefore, the first step in attempting to avoid a trial is to hire a lawyer who is capable of trying your case.

There seems to be a widespread misunderstanding of what is meant by advocacy or by a lawyer “fighting for a client.” Some clients seem to think they have to choose between a lawyer with the temperament of a half-blind, raging bull on one hand or a Milquetoast, timid, do-nothing lawyer on the other. This harmful misconception can become a self-fulfilling prophecy. By choosing such lawyers, clients can unwittingly create unnecessary litigation and expense on the one hand or an unfair, one-sided settlement against themselves on the other. Good lawyers know that divorces, like other lawsuits, are fact-driven. The lawyering required should depend on the facts of the case, the behavior of the opposing party, the court you are in, and what you really want out of your divorce. A lawyer is neither a good advocate nor acting in your best interest if he or she starts or continues unnecessary wars. Likewise, you are not being well served by a lawyer who encourages you to accept an unfair or lopsided settlement just because he or she is not trained or prepared to try your case.

Being a good advocate does not mean “egging you on” to try your lawsuit or encouraging you to take unreasonable positions. A huge part of advocacy is advising and encouraging the client to avoid risk. Just as your doctor’s job is to advocate that you stop smoking, follow a heathy diet, and use your medications properly, your lawyer’s job is to be your advocate by advising you to make the most sensible decision available.

Frankly, good advocacy often has little to do with confrontation ofthe opponent. A perfect example of this is the drafting of your divorce decree. Attention to even small details in the decree can make a big difference in child custody and property issues. Often, the opposing lawyer or spouse is not much concerned with the details in the final decree. By paying attention to how the details of the decree may affect you, your lawyer is acting as your advocate and protecting your interest.

Another misconception is that to be a good advocate a lawyer must be rude or unkind. One need only spend time around the very best trial lawyers to know this is not true. Some of the best trial lawyers are kind and considerate as they introduce devastating facts before the judge or jury. As these lawyers make scorching arguments, they do so in a way that causes judges and juries to appreciate the politeness as well as the strong argument being presented. Yes, there is a time to go toe-to-toe, to raise the voice, and to refuse to be pushed aside. But, day-to-day, gratuitous rudeness or unkindness should never be mistaken for good advocacy. More often than not, rudeness and unkindness are counterproductive.

Advocacy seems to be a product that sells. Since lawyers, like practitioners of all other trades and professions, must sell their wares, there is always a lot of talk about “fighting for clients,” “aggressive representation,” “ruthless pursuit of the client’s rights,” or being “one of the state’s premier trial firms.” This self-advertising language is used by those who know that you will be reading it or hearing it at a time in your life when you are frightened, desperate, angry, or all of the above. When you hear this kind of self-praise, stop and take a deep breath. Remember, the one with the most convincing stories about how he was the best quarterback was usually not the same fellow who could really throw the football. You might want to look at other aspects of a lawyer’s personality to try and determine whether this person really has the character and brains to be there for you in the tough times when you will really need the help.

Finally, it’s worth saying again that, even as your advocate who is obligated to fight for you, your lawyer still works for you. You are in ultimate control of the positions your lawyer takes on your behalf, what you demand from your opponent, what you are willing to give up, and whether your lawsuit is to be tried or settled. If your lawyer does not agree with your assessment, the things you are asking for, and the things you are willing to concede to the other side, he or she has an obligation to tell you of his or her disagreement and to give you advice consistent with that position. But ultimately, your lawyer must follow your instructions on all these matters. After all, it’s your case.
In short, to be a good advocate, a lawyer must be passionate, care about the client, and be committed to his or her own profession. But, being passionate, caring, and committed does not require overly dramatic displays or checking one’s brain at the door.

Robin M. Green, Divorce: When It’s the Only Answer (The Ordinary Mortals Guide, Inc., 2005), Chapter 12, pp. 75-79.