What’s the Right Kind of Aggressive When It Comes to Legal Matters?

One of the most important aspects of the attorney/client relationship is being on the same page about when to be “aggressive” and about what “aggressive” even means.

Sometimes when we are approached by a prospective new client, we hear that the lawyer we are about to replace is not aggressive enough and the client views the lawyer as not willing to fight for them. It is absolutely a proper expectation on a client’s part that the lawyer will be appropriately aggressive on their behalf.

Bill Nolan

Aggressive does mean that the lawyer shares your passion for the success of your business. Perhaps by definition, nobody can be as passionate about your business as you and family members who rely on it for their livelihood, but your lawyer should close behind.

Your lawyer should be motivated not solely by collecting on his or her bills, but should genuinely enjoy seeing clients succeed and being a small part of that success. As a client you should feel that shared passion in the lawyer’s responsiveness, ideas, and questions.

Aggressive does mean that the lawyer is expertly and creatively interpreting the law to apply it as far as it reasonably can be on your behalf. Easy example from my usual labor and employment field: The various federal agencies that interpret and enforce various employment laws, such as the Equal Employment Opportunity Commission and the Department of Labor, often issue interpretive positions that are very aggressive readings of the actual laws. The easy, non-aggressive thing for your lawyer to do is to tell you to do exactly what the agency says in all cases.

The appropriately aggressive thing for the lawyer to do is to assess the likelihood that a court will ultimately strike down the agency’s aggressive position (which they often do), and consider with you the costs and benefits of taking a somewhat contrary position in your business dealings.

This is not counseling you to violate the law; the law is what the statute says and what the courts say it says, not always what the regulatory agency says. Sometimes it will make sense to take an aggressive approach on such issues, sometimes it will not. But it always makes sense to consider that option.

Aggressive does not simply mean being hostile toward your legal adversary. Certainly your lawyer should understand why you may feel hostility toward an opposing party that often has been a thorn in your side, whether that opposing party is an employee, a vendor, a customer, or a government agency. But it will almost never serve your business’s interests for the lawyer to manifest naked hostility before a judge or a jury or an agency.

Ask almost any judge in Central Ohio what behavior on the part of lawyers they would change, and at or near the top of the list is uncivil behavior. (Fortunately lack of civility is the exception and not the rule with lawyers around here.) Name-calling and shrill accusations simply do not help you accomplish your legal goals where third party decisionmakers are involved.

Aggressive also does not mean advocating every conceivable position, no matter how strong or weak.  I have always felt, for example, that if you have three arguments that are an 8 on a scale of 1 to 10 and two arguments that are 3s, you are best off making the three good arguments and leaving the long shots to the side.

In this example, would you rather “average” an 8 or a 6? (Trust me on the math there.) That maximizes your credibility with a court or other decisionmaker, and keeps their focus where you want it– on your winners.  Again, when you hear judges speak to their preferences and practices, many would agree.

Aggressive does not mean automatically taking the strongest and swiftest action when you do not have the facts to back it up. Again, an example from employment law:  Imagine a 10-year employee with good performance reviews (whether warranted or not). The employee is in a class protected by discrimination laws.

You are tired of the employee and want to get rid of him –now– despite the lack of any documentation of performance or conduct issues. We understand that.  But you should understand the obvious risks in proceeding immediately to termination. You might decide as a business matter to take that risk, but it is important to understand what the risks are.  Which leads me to …

Aggressive does not mean the lawyer unquestionly executing whatever you suggest. You do not want a lawyer who is afraid to ask you questions, review the potential risks and rewards of various scenarios with you, and challenge you in your thinking. Do you want other silent business partners who do not bring their expertise and ideas to bear to help you make the best decision? You should have the same vigorous dialogue with your lawyer that you have with your key business partners, and for the same reasons.

When looking for a lawyer or assessing the ones you have, make sure you are getting the right kind of aggressive and not simply a trained attack dog. That will best serve your interests in court, in negotiations, and in evaluating legal issues that arise in the day to day operation of your business.