A wise transactional attorney once cautioned me not to be a “cheerleader” for my clients. Having consulted on many high-stakes litigation cases, my colleague had a unique viewpoint on what separated good litigators from bad ones. As a gung-ho baby lawyer, this was some of the best advice I ever received. It also taught me a crucial lesson – what a paying client needs and wants is not always the same thing. Making your clients understand the difference pays real dividends for everyone – lawyers, clients, and the judicial system in general.
The Pitfalls of Being a Cheerleader Lawyer
You are probably asking “what is a cheerleader?” A cheerleader is the worst thing you could be as a litigator who bills by the hour; it is a lawyer who always tells the client they have a “great case” without any hint of objectivity or ability to see the other side’s point of view. Being a cheerleader may land you that new case and emotionally satisfy your client in the short term. But in the end, the cheerleader’s client may feel resentful, disappointed, or taken advantage of if their desired outcome is not achieved.In this highly competitive profession, commercial litigators are under constant pressure to distinguish themselves from all the other good, capable lawyers hunting for the same business. But unlike other businesses, litigation clients often exist in a state of crisis and are highly susceptible to manipulation. The unfortunate but necessary “sales” aspect of our profession creates an inherent conflict for the lawyer. On the one hand, we need to convince the client to hire us and not the other guy because their case has merit and we are the best person suited to achieve their goals. On the other hand, many clients reflexively get turned off if the lawyer even acknowledges that the other side may have a valid claim or defense. So what do you do to close the deal and sign up the client? Do you automatically reinforce the client’s beliefs, whether justified or not, without researching the law or knowing all the facts? Unfortunately, many lawyers do just that out of their own financial self-interest.
I have always believed the best litigators are equal parts objective counselor and zealous advocate. In private conversations with the client, the best litigators demonstrate objectivity, empathy, and give honest and unvarnished advice even if the client does not want to hear reality. More than anything else, a paying litigation client needs to weigh the costs of suit versus the likelihood of success and expected recovery. Your advocate side, however, should generally be reserved for judges, adversaries and the “outside world”. Clients do not always understand the difference between these distinct roles. In fact, many clients expect you to be in “gladiator mode” all the time otherwise they may perceive you as “weak” or not sufficiently dedicated. I have always felt that my job was to make the client appreciate the difference between the lawyer as advocate and the lawyer as counselor.
Dangers of Cheerleader Lawyers
The consequences of being a cheerleader can be disastrous. By the very nature of our positions, lawyers gain a position of trust and confidence with their clients. They have the ability to sway minds and chart courses of action, good or bad. Cheerleaders fill their clients’ heads with unreasonable expectations of victory and may lead them down an unnecessarily expensive path. Good litigators tell their clients the truth, whether or not it is what they want to hear. In general, however, smart clients appreciate honest and reasoned advice — and tend to become repeat clients.
A lawyer is nothing without a client. That means we need to sell, sell, sell. It sounds cheap and below the dignity of our profession, but that is just the reality of private practice. Cheerleaders take the easy way out and sell the client’s hopes and dreams regardless of the cost or probability of success. That tactic may land the case, but it is a shortsighted and selfish approach that is incompatible with our role as fiduciaries. A great litigator distinguishes himself or herself by selling their honesty, objectivity, skill and ability to be a fierce gladiator when necessary.
Clients emotionally want the cheerleader, but what they need is both an honest counselor and zealous advocate. Our job is to make them understand the difference.
