If you are involved in a divorce, child custody or injury case, you will have to choose a lawyer. Choosing a lawyer is very difficult because there is a lot of conflicting information available. You may see a billboard or hear about a lawyer who is a "pit bull" and think that is the way to go. A lawyer who will "fight" and "go to the mat" for you may cost more than other lawyers for several reasons.
- You will pay a premium for their services in your case, because they can't prioritize between the big picture, ultimate outcome and the day-to-day work. They won't make any compromises, big or small, so nothing is done by agreement -- everything has to be done the hard way. Because compromise or even getting along is perceived as weakness by them, you will pay them more to not get along, and you are more likely to have to pay for unnecessary hearings and even a trial which may have been unnecessary.
- You have more personal exposure to financial sanctions from the judge due to your aggressive lawyer's hardline approach and inability to understand the litigation and discovery process. If you are in a divorce case, they will refuse to give the other side your financial records. When the judge finds that refusal was unjustified, it will be you, not your divorce lawyer, who has to pay the fine. If you are in a personal injury case and your lawyer obstructs the other side from deposing witnesses or accessing medical records, it will be you, not your lawyer, who pays the price.
- The other side, your opponent, will always have more options and flexibility as a proposed outcome, and you will be more limited and have more to lose. The system is set up so that the parties to a lawsuit have more power to resolve a case than a judge or jury does. Because your aggressive lawyer doesn't understand this concept, the other side will have more opportunities to get creative with settlement offers and angles to incentivize resolution. You will leave thousands of dollars and tantalizing proposals on the negotiation table because your aggressive lawyer is telling you to do something different.
- Your aggressive lawyer is hyper-critical of opposing counsel. He hits the table in a rage and talks about how unethical his opponent is. He will send sharp letters and file documents full of denials and requesting sanctions and attorney fees. At mediation he talks about how unreasonable the other lawyer is. As your case develops throughout litigation, your options will become more limited because of the way you are positioned from your discovery responses and rulings by the judge on issues. Even at trial, in opening statement your aggressive attorney makes the case about the lawyers. He will mention the other lawyer's name in opening statement and in closing argument as if the case is about the lawyers' lives rather than yours. Your story will not be told, because your case is really about your lawyer's ego. You will pay the price in the outcome of your case, even after you have walked away from multiple opportunities to settle your case. When you hear the outcome, you will feel confusion because it is so different from what you were told. As you learn about the outcome, you will remember the settlement offers that the other side made and realize that now your situation is irreversible. Even though your aggressive lawyer has assured you and made you wonderful promises, it will be you, not him, who has to live with the trial outcome.
- To add insult to injury, you will now receive a request by the other side for you to pay their attorney fees. Their request will outline the difficulties they encountered in the case: the insulting letters, the obstructive discovery objections, the unnecessary hearings, the settlement offers they made which were ignored, the behavior in trial, and the outcome in trial. Those facts will also reference applicable law showing how all of those facts support an award of attorney fees to them. As you read through it, you will recognize the truth in their timeline and see the contrast between how they disclosed information to you and your lawyer and tried over and over again to resolve small and big picture issues in the case. Then you will receive an order from the judge requiring you to pay the other side's attorney fees.
Rather than hire a trial lawyer to help you realistically assess your case, discuss risk and settlement options and prepare for trial while working with the other side, you pay a premium for an "aggressive" lawyer -- more than double what other options would have cost, no matter what the rates of the other lawyers were that you did not hire. You had difficulty throughout the case with what seemed like an angry judge who ruled against your "strong" lawyer's motions and objections more often than not. You remember catching the mediator's eye and seeing the look on the mediator's face as you nodded in agreement with your lawyer that you "won't back down" and that you absolutely reject any proposal that deviated in any way from your demands. You will be haunted by the difference in the opening statements: your lawyer talking about himself and the other lawyer, while the other lawyer tells a story that makes you slide down in your chair a little bit. Then you will have to live with the decision. What is the cost of an aggressive lawyer? The cost is everything that you have.
There are some situations where you may be able to afford an aggressive, obstructive lawyer who will not cooperate with anyone else in the case:
- If you are an heir to a banking or petroleum fortune and most of the estate's assets are held in an offshore trust, you may be able to afford the premiums of an aggressive lawyer, including a terrible trial outcome
- If you are serving a lifetime prison sentence, all of your appellate options have been exhausted, and someone else is paying your attorney fees, you may not have anything to lose
- If you are an insurance company with enormous profits, you may use lawyers whose job is solely to obstruct the administration of justice so you will not have to pay legitimate claims
However, if you are a parent, employee, business owner or a licensed professional, you may not be able to afford a scorched-earth litigation strategy.
There are cases that are very difficult to settle and need a trial. However, even when both sides are diametrically opposed, there are always ways to streamline a case to move forward to give both sides the best opportunity to look for compromise and then to try the case. Attorneys can reach stipulations that minimize the expenses associated with discovery. Once you have your evidence put together, you can share it with the other side, even if they haven't asked for it, both to show the strength of your case and encourage settlement as well as to make the evidentiary disclosures necessary to tell the judge that you are now ready for trial. If your case goes to trial, the decision will be made based on facts. A trial attorney will be firmly on your side and resolute in your position while at the same time privately advising you about risk and working with opposing counsel to make the litigation as positive of an experience as possible for both sides. Those things are not mutually exclusive. Being unpleasant or difficult to work with is not a sign of skill or strength. Even if ultimately your trial outcome is less than what you expected or hoped, you may have less exposure to paying the other side's attorney fees if you and your lawyer handled the case appropriately from start to finish.