Shocked, shocked!

A libel lawyer, yesterday

A couple of weeks ago David Allen Green poked some gentle fun on Twitter at the habit of certain lawyers of professing themselves to be variously but profoundly surprised, shocked, and appalled by whatever behaviour they are writing to complain about.

As David said (I paraphrase, as the exchange is no longer available), the offices of London’s leading libel practices must, if their letters are taken literally, be in a state of shrieking alarm at some outrageous slur or other on an almost constant basis. One fears for the mental health of these sensitive and delicate souls.

Perhaps it is not surprising that libel lawyers should be the drama queens of the legal world, posturing and flouncing rather in the manner of their celebrity clients. Except that they are not by any means unique in this regard.

It is not uncommon for a certain type of commercial lawyer to profess their justified anger, or (much worse, obviously) profound disappointment at the raising of some point or other in the course of negotiation. Like a dowager duchess finding a housemaid to be over-familiar, they are distraught at the sheer effrontery.

The man who asked for direct loss of profits to be excluded

Often this is accompanied by some rather queenly condescension about “the market position”, or perhaps some reference to “my 20 years of experience in this field.” There might be a bit of amateur dramatics, with eyes rolled, sighs heaved, and even (for the true artiste) papers chucked.

But while some lawyers probably are prone to unleashing their inner Mariah Carey when crossed, all this drama is obviously more often a tactic. The old litigation advice, to present your strongest face first, has perhaps been carried over into non-contentious matters.

This approach clearly works on some level, else it would not be employed so extensively. Where costs are high (in litigation), or there is an imbalance of bargaining power (in transactional work), a little tactical anger goes a long way.

And in some ways, it’s all in the game, all part of the theatre of the law. In the manner of Captain Renault, we are shocked, shocked! at the very differences and disagreements from which we earn our livings.

Shocked!

One wonders, however, if it has become a default mode for some lawyers. All too often the flounce and the tantrum are used in place of persuasion and argument, in circumstances where the latter would be more appropriate and the former is counter-productive.

Does anyone seriously think, for example, that defendant libel lawyers read of the surprise and shock felt by their correspondents and think, “Well, if my client has upset them that much…”? I imagine that what most lawyers, including those self-same correspondents, would do is to calmly analyse the facts and the law before advising their client on how to respond.

But the initial instinct of others might be to say, “Right, if they’re going to be like that…” and dig their heels in a little more. Result: entrenched positions and a long, expensive and bad-tempered process.

Evidently this is not just my personal bugbear, as the lawyerly archetypes described in this wonderfully intemperate blog by Nicky Richmond for The Lawyer show. (Nicky, you may not be surprised to learn, tweets under the handle @saysitstraight). 

What makes all this particularly ridiculous is that the lawyers who use these tactics almost certainly see through them well enough when on the receiving end themselves. They bridle when condescended to by other practitioners, and yet continue to believe that this is an effective way to negotiate.

I could conclude by quoting the biblical dictum to do as you would be done by. I’m not a religious man, though, so I’ll leave you with the sage advice of Mr Michael Winner: Calm down, dears.