The Myth of the Ruthless Lawyer

 Posted on April 28,2008 in Uncategorized

Young Shawn Matlock, Fort Worth "Republican" criminal defense lawyerattorney, responds to my position that empathy makes us better lawyers and in doing so asks the following:

But what about ruthless? Ruthless to get exactly what you want. Ruthless to not settle for less. Ruthless to take no prisoners, no matter what the cost to others. Ruthless to the point that everything is just collateral damage.

Now, I assume that Young Shawn intends this at least in part as rhetorical puffery for the paying customers. First, "ruthless" doesn't guarantee you "exactly what you want"; "ruthless" doesn't mean "not settling for less", it means "not having compassion" (maybe Shawn here means "relentless"?).

Unless Young Shawn is a sociopath, "no matter what the cost to others" is (how to put this gently?) a lie. That our clients' wellbeing is our sole concern - to the exclusion of all others - is a popular conceit, but it's no more true for being popular. The truth is that criminal-defense lawyers take into account other people in defending their clients. Some collateral damage is unavoidable, and some is unacceptable. And rightly so.

Don't believe me? Here's a thought experiment: suppose that you, a lawyer, could legally kill an innocent child and free your client. Would you do it? Of course not - again, unless you're a sociopath. If you agree with me that you wouldn't execute an innocent child for your client's sake, then we're just haggling over the price.

Young Shawn, not content with that sobriquet and realizing that "the Texas Hammer" and "the Tough, Smart Lawyer" are already taken, is apparently marketing himself as "The Ruthless Take-No-Prisoners Lawyer". For he asks:

Now with those in mind, which should be the dominant character trait for a criminal defense attorney?If you're hiring a defense attorney, do you want someone to feel your pain, or someone to take no prisoners in defending you?

I'm sure "take no prisoners" will sell to the customers, as apparently do "aggressive" and "former prosecutor". The bulk of people hiring a criminal-defense lawyer have never hired a lawyer, much less a criminal-defense lawyer, before, and don't know what to look for. Sometimes they think they will be best served by an "aggressive" "ruthless" "former prosecutor" "pit bull" lawyer. (I don't mean to libel the breed; I'm talking about the public perception of pit bull dogs: aggressive and dangerous.)

Take-No-Prisoners Shawn seems to think that you can't be empathetic toward just one person or category of people - that a lawyer who feels for his clients is also going to feel for the cops, the prosecutors, the judges, and the complainants.

Take-No-Prisoners Shawn is right: an empathetic lawyer has empathy for everyone. A compassionate lawyer has compassion for all.

A ruthless lawyer, on the other hand, is... ruthless. No empathy for one means no empathy for any; no compassion for the complainant means no compassion for the client. If a compassionate lawyer helps people to try to minimize their suffering, why does the ruthless lawyer help people?

1. Money?

2. Ego?

3. "Love of the Game"?

I suspect that if I were accused of a crime I would (all else being equal) not want a lawyer who was defending people to turn a buck (speaking of ruthlessness, see Machiavelli, The Prince Ch. XII on mercenaries), to feel better about himself, or because he saw it as a game (I don't often cite Connecticut criminal-defense lawyer Norm Pattis twice in one post, but see The Sporting Theory of Trial: I). I don't think I would trust such a person not to turn on me when it suited his financial interests or his ego, or when the game turned.

I would want the lawyer who could best discover and tell the story that would clear my name, and I would want her to be relentless in the pursuit of my freedom. I suspect that this would be a lawyer who cared about me.

Some people equate empathy and compassion with weakness (see Iowa criminal-defense lawyer Chuck Kenville's Do Criminal Defense Attorneys Need a Heart?). They couldn't be more wrong.

People decide cases not based on intellect but on emotion. The key to emotion is empathy. In advocacy, empathy is power. Everything else is just an imitation.