There are a few things to unpack here:
- Is there any correlation between aggressive lawyers and successful lawyers?
- Insofar as there is any such correlation, which is the cause and which is the effect, or are they effects of a common cause?
- When does it pay off to be aggressive? And can leopards really change their spots? Or zebras their stripes?
The first thing to do here is to separate aggression from self-confidence and determination. For dispute resolution lawyers, the latter is certainly a desirable quality, and essential for anyone who aspires to any leading role. I can perhaps illustrate this best by recalling an incident from very early in my practice, soon after I had set up my firm in London. In those days, no task was too small for me. And in this case, I was instructed as a “post box” agent by out-of-town solicitors. They had already instructed Michael Burton of counsel, then a junior, on an appeal before a Court of Appeal presided over by Lord Denning, Master of the Rolls. Lord Denning is something of a hero to some, but whatever else, he was certainly capable of being something of a tyrant in his own court. The proceedings went something like this:[1]
CASE CALLED. MR BURTON RISES TO HIS FEET.
DENNING MR: Mr Burton, we have seen the papers in this matter. We no longer allow these applications, and so there is no need for us to hear from you. Application dismissed. Will the Associate call on the next case?
Mr BURTON: My Lords, this case is not on all fours with those you have considered in the past. I would like to be heard.
DENNING MR: There is no need for that, Mr Burton. We have seen the papers.
MR BURTON: With respect, my Lords, I wish to be heard. This is an application which should be heard.
DENNING MR: We have a very busy list this morning, Mr Burton. Please sit down.
MR BURTON: My Lords, this application is properly brought, and my clients are entitled to be heard. The court must allow us some time.
DENNING MR: Oh, very well, Mr Burton. We will hear you. But please make it brief: as I have said, we have a very full list today.
[ARGUMENT WAS HEARD]
DENNING MR: When this case was called before us this morning, we thought it fell within that category of applications which this court does not allow. But Mr Burton has persuaded us that this case is different, and we allow the application.
[BRIEF INTERLOCUTORY REASONS FOR THE DECISION WERE DELIVERED]
Most counsel would have crumbled. Michael Burton did not. Without being in any way aggressive or discourteous, he held his ground in front of a hostile court, and went on to prevail. Unsurprisingly, I instructed him as leading counsel on a number of occasions when my practice developed; he was the most able of an able cadre. I do not think we ever lost a campaign. In fact, I know we did not. I do not think we even ever lost an application.
Michael Burton – now Sir Michael Burton GBE – later went on to become Mr Justice Burton, a judge in the High Court of England and Wales, and President of the Investigatory Powers Tribunal. He still acts as an arbitrator and mediator.
Conversely, I can recall umpteen examples of solicitors and barristers displaying aggression, and that aggression backfiring on them. I am not going to set out examples here, because the parties in question might be offended if they read this post. And a few examples of where aggression – or a least rough handling of an opponent – has worked, if not to obtain a different result, at least to shortcut matters that might otherwise have taken rather longer. But the pattern I have seen over the years has been this: aggression only works – if at all – when the individual is quite a bit smarter than those on the receiving end. Put another way: aggressive not-very-smart lawyers rarely achieve good results for their clients.
They sometimes, however, do quite well in another respect. There are clients who very much want a “street fighter”, and value that quality above all. And so their lawyers are often really addressing – not the legal situation in front of them – but the expectations of their clients behind them. Usually, these clients end up losing their cases.
Let me give another example, on the other side of the coin, of ineffectiveness. Some years ago I was asked by a substantial engineering concern to give a second opinion; they had just lost a very substantial case in the High Court in London, and their solicitors (a large London firm) had advised them that there was no prospect of challenging that on appeal. I was given the judgment to read. I got the sense that the judge had no real understanding of the technical issues at all, and asked to see the experts’ reports of both parties. My suspicions were confirmed: lengthy sections of the judgment had been cut-and-pasted from the expert reports of the other party without any indication that there had been any intellectual engagement by the judge with those issues.[2] And so I advised that there was a respectable prospect of obtaining leave to appeal, and for that purpose, I suggested that copies of both the judgment and the reports should be put before the Court of Appeal with the passages that have been cut-and-pasted highlighted in yellow. This was done, and the clients were indeed granted leave to appeal. Unhappily, the clients – evidently drunk with this success – paid no regard to my advice that they should then settle (reasonable settlement terms would then have been available). They were clearly frustrated by the lack of any drive evident in their team on the record, and pressed on to the appeal itself. Which they lost. So what was going on? It seems to me that their legal team was doing little if anything to improve the legal position. One could point to none of their advice which was wrong. Rather, it seemed to me, they were playing the role of a priest by the side of a condemned man, explaining accurately enough on the path to the scaffold, but doing nothing useful to alter the outcome of events. The problem was not any lack of aggression, but lack of imagination and determination to achieve a better outcome.
Is there anything much that an intrinsically aggressive lawyer can do to rid himself or (more rarely) herself of that aggressive nature? I am not sure that there is. Save perhaps some sort of hormone therapy, to dampen down the testosterone. But for the client, there is an available option: beware of instructing overly aggressive lawyers. Those lawyers may bang the war drum in a way you might initially find gratifying, but you are more likely to win your case if you instruct a lawyer who is determined and assertive in a more measured way.
What about the other way round? Can intrinsically reticent lawyers be effectively trained to be more assertive? There are certainly those who assert that they can; just this week, I saw my local Law Society was advertising training under the banner “Assertiveness Skills for Legal Practitioners”.[3] Do they work? I really do not know, and would be interested to hear the experiences of anybody reading this post who has been through such a process.
Let us return to the question of cause and effect:
- Does aggression lead to success? In the world at large, there has been a fair bit of research on this, at any rate based upon the proposition that testosterone levels are a reasonably good proxy for levels of aggression. The conventional wisdom appears to be, “Yes, but nearly not as much as you might think”[4]. But that conventional wisdom must be treated with some caution: almost all the analysis is as to whether aggression leads to success, and they do not much consider the possibility that it might well be the other way around (see below). Other studies suggest that high levels of testosterone might be an impediment to success.[5] See above and below as to how this works out for lawyers.
- Does success make lawyers more aggressive? Again, one might start from research on society at large, which suggests that success, or even self-perceived success, typically has the effect of increasing testosterone levels in men, both in the short term[6] and in the long.[7] My recollection is that – somewhat bizarrely – this is true even in the Roman Catholic Church: testosterone levels are increased by promotion. I am not aware of corresponding research in relation to women, but anecdotal experience suggests that there is a snowball effect here also: assertive women tend to become even more assertive if they achieve success.[8] This might be especially true of feminists: if they rise through the ranks, they typically find that their peers are more and more male, and this might well rankle.
- It is perfectly possible that a certain genetic recipe might lead both to generous levels of assertiveness (and in particular, a facility for showing aggression when required) and also to success across a broad range of other parameters. On such an analysis, aggression does not cause success, nor vice versa.
Trying to pull these threads together:
- Being aggressive as a lawyer might help you win some clients – typically at the lower end – but will not help you win cases. If you are able to control your aggression; tone it down.
- If you are a client, try to spot the lawyers who are highly assertive but, at root, are as thick as mince. Avoid them like the plague, even if they are lauded by the press or other clients. Unless all you are interested in is clearing some rats out from your basement, or intimidating opponents at the bottom of the food chain. If you check their record, they are usually losers in terms of their results for clients.
- As a rational lawyer, you will come across opponents who are highly aggressive but intellectually wanting. Engage with them as little as possible. Remember the old adage: it is futile to argue with idiots – they bring you down to their level and then beat you on experience. If the aggressive opponent is a barrister, get the solicitors to talk. Or vice versa. Or get the clients to talk directly. Or just reconcile to the need for the court to decide.
[1] I paraphrase. It was a good while ago.
[2] The observation of Richard Feynman, the physicist, is pertinent here: students who parrot back what they have been taught word for word may not have understood the material at all. On the other hand, those who express the concept in different, but equally accurate, terms have certainly understood it. That observation is all the more important these days of digital cutting and pasting. And, even worse, AI.
[3] The flyer goes on:
Being assertive around colleagues, partners, and even clients can be challenging for some lawyers. Instead, when faced with challenging circumstances, these individuals often default to using passive (or sometimes even aggressive) communication – neither of which is conducive to achieving long-term goals.
If you find yourself struggling with asking for assistance, declining requests, speaking up in meetings, or dealing with criticism, it may be time to learn how to improve your confidence and assertiveness. After all, confidence and assertiveness are critical skills both at work and in your personal life.
[4] See for example Testosterone and socioeconomic position: Mendelian randomization in 306,248 men and women in UK Biobank SCIENCE ADVANCES 28 Jul 2021 Vol 7, Issue 31. The abstract reads:
Men with more advantaged socioeconomic position (SEP) have been observed to have higher levels of testosterone. It is unclear whether these associations arise because testosterone has a causal impact on SEP. In 306,248 participants of UK Biobank, we performed sex-stratified genome-wide association analysis to identify genetic variants associated with testosterone. Using the identified variants, we performed Mendelian randomization analysis of the influence of testosterone on socioeconomic position, including income, employment status, neighborhood-level deprivation, and educational qualifications; on health, including self-rated health and body mass index; and on risk-taking behavior. We found little evidence that testosterone affected socioeconomic position, health, or risk-taking. Our results therefore suggest that it is unlikely that testosterone meaningfully affects these outcomes in men or women. Differences between Mendelian randomization and multivariable-adjusted estimates suggest that previously reported associations with socioeconomic position and health may be due to residual confounding or reverse causation.
[5] See for example Testosterone and Occupational Achievement Social Forces, Volume 70, Issue 3, March 1992, Pages 813–824, https://doi.org/10.1093/sf/70.3.813 Published: 01 March 1992. The abstract reads:
Men with higher levels of serum testosterone have lower-status occupations, as indicated by archival data from 4,462 military veterans in six U.S. census occupational groups. This finding supports a structural equation model in which higher testosterone, mediated through lower intellectual ability, higher antisocial behavior, and lower education, leads away from white-collar occupations. The model is plausible because testosterone levels are heritable and available early enough to affect a number of paths leading to occupational achievement. Prior research has related testosterone to aggression in animals and men, and high levels of testosterone presumably evolved in association with dominance in individual and small-group settings. It appears an irony of androgens that testosterone, which evolved in support of a primitive kind of status, now conflicts with the achievement of occupational status.
[6] See for example ‘Believing you’re a winner’ gives men a testosterone boost and promiscuous disposition ScienceDaily, University of Cambridge 2018.
[7] I am sorry to say that I have been unable to find the reference for this research. Someone reading this post who is on top of this particular, might be able to assist?
[8] A striking example, you might think, is the car crash interview of Angela Rayner, Deputy Leader of the UK Labour Party, being aggressively assertive on the topic of fiscal reform, a topic about which she plainly know very little. And unsurprisingly, being made to look very foolish as a result.