Aggressive Criminal Lawyer? No, Thanks.

 Posted on March 08, 2009 in Uncategorized

Here are the Google results for:

1. compassionate criminal lawyer: about 124,000

2. truthful -truth criminal lawyer: about 148,000

3. tough criminal lawyer: about 315,000

4. creative criminal lawyer: about 319,000

5. aggressive criminal lawyer: about 2,290,000

Granted, these are not all lawyer websites, but there's a Michigan lawyer with the domain name AggressiveCriminalAttorney.net, and he's not alone in advertising his aggression. Search for "Houston criminal lawyer," and two of the highest-paying pay-per-click campaigns include "aggressive" in their descriptions. Arguably, lawyers who market themselves as "aggressive" are simply giving the potential clients what they want. Google's keyword tool shows searches for "aggressive attorney" (average 880 searches per month) and "aggressive lawyer" (average 720) but not for "compassionate lawyer" or "compassionate attorney", nor for "creative lawyer" or "creative attorney."

But should we be using this new (to most lawyers) medium to tell the potential clients what they want to hear, or to educate them and make them better clients?

There is a place for aggression in criminal defense: sometimes the defense finds an opening in the government's case, and the best approach is to drive hard and keep the government on the ropes until it's forced to dismiss, offer favorable plea terms, or go to trial underprepared. More often, though, we're working to defuse the situation, and aggression is not called for.

Sometimes the very best thing for the lawyer to do is nothing. In my experience, aggression is called for only in very limited circumstances. Aggression adds energy to the system, and adding energy to a system generally increases both the probability of failure and the magnitude of that failure. (The latter is the principle behind Bennett's Chainsaw: The more things you must contest and the more explanations you must provide in order to mount a defense, the more likely it is that you will be convicted.)

The Law of Requisite Variety (popularly restated as the Hammer Rule: if your only tool is a hammer, every problem looks like a nail) dictates that the more ways we have of defending a case, the greater the variety of cases we we can successfully defend. A lawyer who sees every case as an opportunity to express her aggressiveness misses opportunities to act peaceably or amicably. She's painting with a limited palette. Or maybe she's painting with a hammer.

Aggression forecloses other options. Once we've behaved aggressively toward an adversary, it's hard to move to a different mode. Until we've thoroughly investigated the facts of the case, cautious vigilance is a better approach than aggression. (Here is an actual letter written to an actual prosecutor by a defense lawyer who hadn't even read the offense report yet; you can see how it might close off some of his options in defense of his clients.) In criminal defense, as in other strategy games, it's often better to keep your options open while minimising your opponent's."

Creativity is a much better character trait for a criminal-defense lawyer than aggression. Creativity allows for us to use our entire repertoires - aggression when required, passivity sometimes, mindfulness always.

Zooming in on our Google searches, the numbers are different; creativity does better, as does compassion (at the expense of truthfulness). Here are the Houston searches:

1. truthful -truth houston criminal lawyer about 7,770

2. compassionate houston criminal lawyer: about 21,300

3. aggressive houston criminal lawyer: about 42,200

4. tough houston criminal lawyer: about 59,200

5. creative houston criminal lawyer: about 65,700

Miami, New York, Dallas, and Los Angeles searches bear similar results. Chicago and San Diego favor aggression over creativity:

1. creative chicago criminal lawyer: about 137,000

2. aggressive chicago criminal lawyer: about 158,000

3. creative San Diego criminal lawyer: about 77,400

4. aggressive San Diego criminal lawyer: about 304,000

I'm sure there's something I'm missing that explains why "creative" comes in ahead of "aggressive" in searches for Houston criminal lawyers, as well as Miami, New York, Dallas, Los Angeles, Philadelphia, and Austin criminal lawyers, than in those for criminal lawyers nationwide, Chicago, or San Diego. Your thoughts?