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The Zen of Legal Aggression

January 30, 2017Legal Philosophy

Woman smelling rose, swordsman behind her, text saying the Zen of Legal Aggression

"Only when you can be extremely pliable and soft can you be extremely hard and strong."
- Zen Proverb

Zen is a practice that needs to be experienced, which makes it hard to define. But you can zenify just about everything and anything. As an attorney, one thing I love to zenify is legal aggression. Once you're able to detach yourself from the emotions and desired outcomes that inherently inhabit conflict, you can find the flow of legal aggression and ride the wave to effective advocacy.

Redefining Aggression

I consider myself an aggressive litigator. Upon meeting me, virtually no one would come away with that impression. In fact, they'd probably come away with the exact opposite impression.

I don't fit into any of the caricatures of an aggressive attorney that exist in the collective unconscious. You know—the exaggerated loud, pushy, rude pit bull attorney. (Amusingly, real life lawyers who fit this description are usually less competent and disliked by judges and juries.)

It's always fun to see that initial impression turned on its head as a legal matter or litigation progresses. I've had opposing counsel ask me to lay off the relaxed aggression. I've had opposing parties wanting to retain me for their next matter after seeing relaxed aggression wreak havoc. Of course, they don't know that I've named it relaxed aggression.

My Stoic View of Aggression: Relaxed Aggression

Do you remember the Don't Sweat the Small Stuff series of books by Richard Carlson? I remember reading a chapter in one of those books about what he called "relaxed passion." He talked about how people confuse or equate passion with hyper or frenetic behavior. What he found more useful was a calmer type of passion that he called "relaxed passion."

I think that is where I developed my version of legal aggression that I call "relaxed aggression." Like relaxed passion, relaxed aggression is aggression without the hyper or frenetic behavior. It is a calmer type of aggression.

Relaxed aggression involves calmly and methodically chipping away. It's being unrelenting. But you never get worked up. Once you master relaxed aggression, there's a guilty satisfaction you get from getting under the opposing party's or counsel's skin.

Relaxed aggression can take many different forms depending on the legal task at hand. It can also be proactive or reactive. On the proactive side, legal aggression takes the form of initiating. On the reactive side, legal aggression takes the form of responding. Legal aggression is most effective when it is incessant and when it is both proactive and reactive.

Develop Your Own Philosophy on Aggression

Relaxed aggression works for my personality type. It's something I'm comfortable with and can apply effectively.

However, I often observe other attorneys. And I think to myself that if I had that particular person's personality or skill set, I would adopt and use a completely different philosophy of legal aggression. Take some time to consider your skill set when deciding how YOU can most effectively use legal aggression. What philosophy of legal aggression makes sense for you?

Get Your Clients To Buy Into Your Philosophy

I'm convinced that being proactive and aggressive in litigation is essential to success. I think that if you are going to be passive, sit back, and do the minimum possible, you might as well just capitulate right away. In legal matters other than litigation, the importance of being proactive and aggressive can vary. But even so, it all comes down to the client sharing your litigation or legal philosophy. If a client doesn't share your philosophy, or if the client's budget won't allow it to share your philosophy, then the beauty of relaxed aggression (or your particular philosophy) may never see the light of day in that legal matter. Or it may have to be implemented half-way, reducing its effectiveness more than commensurately. Do you compromise your philosophy? Do you only work with clients who allow you to apply your philosophy? Do you write off the additional time to effectuate your philosophy with no cost to the client?

As in Life, Aggression Works in Litigation

In many ways, aggression is really synonymous with action. So many times the choice is between doing something (i.e., taking action) or doing nothing (i.e., taking no action). I almost always advocate for taking action. I say almost always because rarely is anything absolute and there are always exceptions that arise in certain circumstances. But exceptions aside, when the choice comes down to action versus inaction, I choose action. And the simple act of taking action—whatever that may be—often equates to aggression. You could file a motion or not file a motion. Filing the motion is taking action, being aggressive. You could depose that witness or forego the deposition. Taking the deposition is taking action, being aggressive. You could do something now or do it later. Doing it now is taking action, being aggressive.

That doesn't mean that taking action or being aggressive always works or even works most of the time. But you have to take action to achieve the results you want. If you don't play, you can't win. You and I could come up with thousands of examples of this. Taking action and being aggressive is a numbers game. The numbers will eventually go your way, lopsidedly so, if you err on the side of being aggressive and taking action.

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