Often as a criminal defense lawyer, I will walk into court and joke around with the prosecutor before a client’s case is called. On more than one occasion, a client has called me on the carpet for laughing with the prosecution before their case is called. I usually explain to the client that simply because I may laugh with the prosecutor, or heaven forbid, even be on friendly terms, does not mean I will not fight zealously for their cause. Moreover, I expect no less from the prosecution.
However, in honor of the Holiday period, I thought it might be useful to think about this idea in more detail. So is there a basis to be “friendly adversaries”? I think so. If I look down my nose at the prosecution’s case I do a grave injustice to my client. Such a condescending (and emotional) review of the prosecution’s case means that I judge their case in harsh and likely inaccurate terms. The practice of building my case consists of finding an advantage, leveraging the superiority of my position. The danger in case case-building is a corresponding tendency to think the other side is crazy for proceeding to trial. That is a big mistake. In fact, one study found that negative emotions, like disgust, shuts down a person’s ability to reason. Horberg, Keltner, Oveis, Cohen, Disgust and the Moralization of Purity, 97 J. Of Pers. & Social Psych. 963 (APA 2009). In fact, those touchy feely people in alternative dispute resolution now tell me that the most important predictor of my effectiveness isn’t my ability to leverage the advantages of my position, but the ability to empathize with an adversary. Reilly, Theory that Leads to more effective dispute resolution, 10 Nev. L.J. 433 (2010).
So, I guess being an ass in court is not helpful to a client. Effective advocacy means a fundamental respect and appreciation for the prosecution — their claims, their reasoning, and their motives. Maybe Ghandi and Dr. Martin Luther King had the right idea. You cannot fight force with more force. Dr. King once said:
Like an unchecked cancer, hate corrodes the personality and eats away its vital unity. Hate destroys a man’s sense of values and his objectivity. It causes him to describe the beautiful as ugly and the ugly as beautiful, and to confuse the true with the false and the false with the true.