I can hear my law professor screaming about that title right now. She hated the term ‘zealous advocacy.’ As an attorney in training, I only had some very vague idea of why ‘zealous advocacy’ might not be the best possible term. The preamble to the Model Rules of Professional Conduct (MPR) does mention zealous advocacy. However, the rules themselves only state that an attorney must be competent, diligent, and communicative with their client. The rules also require that an attorney have candor toward the tribunal and be fair to opposing counsel. As a real life attorney, I understand my professor’s distaste for the term ‘zealous advocacy.’ While I am sure I can be competent and diligent while being honest and fair, I’m not entirely sure I can always be zealous (whatever that means) and in line with the MRP.
My colleagues all interpret the duty to act as zealous advocates (a duty I’m not sure anyone actually has) in different ways. However, since the term isn’t at all defined and attorney types tend toward neurosis, the average court room is filled with various perversions of zealous advocacy. Some of the more hilarious/annoying (depending on your mood and gallons of coffee consumed before court) of these are:
This attorney walks into the courtroom with their chest puffed out to the point where you always get the vague sense that they are some sort of animal seeking a mate. It’s their belief that zealous advocacy is strutting around with an air of self righteousness and infallibility. Their soundtrack is Razzle Dazzle from Chicago. These attorneys pound their chests frequently and speak only imperatives.
Generally, if you acknowledge how impressive their feathers are, these attorneys feel as though they have done their job for their client and will be much easier to work with. Sure, maybe you feel like that’s a blow to your ego, but let’s face it, you are an attorney, so you never had much self-esteem to start with. Better to just fluff their feathers, so you can get some work done.
This is the type of person who went to law school because they loooooved arguing. They were constantly starting verbal sparring wars with everyone they knew. In grade school this generally made them the most picked on. But they always knew their willingness to verbally harass anyone about anything would one day make them rich. Naturally, they and everyone around them assumed they would make great lawyers. That’s all lawyers do right? Fight pointless verbal battles?
Their idea of zealous advocacy is to belittle and demean anyone whose position is different than theirs. When discussing a possible settlement, this attorney will generally alternate between laughing at opposing counsel’s suggestions and making personal digs at their competence. They believe that zealous advocacy is pounding the table and picking fights. You wont be able to get anything done with them until they feel that they have started enough quarrels to warrant their legal fees. So, it is always best, when deal with this type of attorney, to create a series of pointless battles at the start of the case so when things get real, they can feel they have met their argument quota and just get to work.
This attorney either believes that taking on their client’s emotions is zealous advocacy or they simply can’t help themselves so they hope that it is zealous advocacy. This type of attorney regularly reports not sleeping for days on end because all they could think about was their client’s problems. This attorney walks around in the courtroom with a heavy heart. They are not above resorting to begging and pleading for their client and can be brought to tears when things don’t go well.
When working with this type of attorney, always speak in soft tones. Reassure them that their client will be alright. Understand that they are feeling everything their client feels, so do not get upset with them when they are overly invested in a position that is unwinnable. Instead, encourage them to see how that position actually hurts their client and express your sympathy when they realize their client won’t get everything they want.
This attorney has some sort of delusion that it’s actually easy to lose your bar card. Karry Steigerwalt, famous in San Diego for reassuring attorneys everywhere that they will not lose their bar card, took money from approximately 6,000 clients and did not perform any legal service for them. His defense was that not all of them had paid in full. He got a one year license suspension and was put on probation. So to recap, straight up taking money from your clients and then doing nothing gets you, at most, a one year license suspension.
However, every courtroom has the attorney who, despite these facts, lives in perpetual fear of losing their bar card. They believe that if they do not fight everything (regardless of the merits of the fight) they will lose their license to practice law. They do not believe in picking their battles. These attorneys do not analyze facts and then apply the law. Instead, they simply object to everything. No matter what.
I have no advice for you on how to deal with this attorney. They will just simply make your life harder if you happen to appear on a case with them. Everything will take longer. However, rest assured that juries and judges do not like to have their time pointlessly wasted any more than you do. So, you certainly have a foot up on them.
And the M. Night Shymalan twist here is that this attorney is every attorney. This category even encompasses the above bastardizations of the zealous advocate. Because, no one knows what zealous advocacy means! It’s not a real thing. And attorneys are not confident souls. They wouldn’t need to puff their chests out and act like peacocks if they were. And even if we were filled with confidence, how do you be something when no one knows what that something is?
Instead, we all constantly worry that we aren’t doing the best thing. We are racked with guilt when we agree to a settlement in a case where we didn’t know if we could win at trial. The thought that maybe we could have won digs into us at every turn. We have to constantly asses the value and winnability of cases, but we don’t have crystal balls and we don’t actually know what a judge or jury will do. We are advising people on best guesses and we are terminally concerned that our best guess wasn’t good enough. None of us know know what a zealous advocate is and we aren’t at all sure that’s what we are.
(image: businessman and businesswoman having a quarrel via Shutterstock)