by Kendria Pearson
As a competitive athlete growing up, I had to learn to play by the rules, be a good sport, lose with grace, be disciplined, be a team player, and win with dignity. Considering the winning and losing aspects of litigation and trial, I naively assumed practicing law would follow similar ideals. Nevertheless, the one thing I have noticed in my first year as an attorney, is how mean attorneys can be to one another during litigation. I am now starting to see why attorneys are called sharks.
For the past month, the engineer in me has tried to figure out why litigators are sometimes so mean to opposing counsel. (By “mean,” I am referring to nitpicking motions, duplicitous communications, accusatory emails, stubborn stances, aggressive phone calls, demeaning words, harsh demand letters, etc.) I first tried to come up with another occupation that has a similar reputation. I have not found one—other than politicians, who are predominately lawyers.
Next, I considered possible reasons why attorneys may be less than friendly with one another to see if I could come up with a comparable occupation based on these reasons. Generally, lawyers (especially litigators) are: involved in conflict, competitive, in win-lose situations, stressed, and proud. When you look at a lawsuit like an event that will be either won or lost, lawyers kind of resemble professional athletes. Both attorneys and athletes “practice,” are competitive, strive to win, are paid and respected based on their win rates, sometimes lose, are under pressure, must justify their actions (e.g., to clients, coaches, fans), and are judged by others (e.g., judges, referees, umpires, etc.).
So why don’t attorneys follow the sportsmanship ideals? What makes the practice of law different from a career in professional sports? I have brainstormed and picked the brains of other attorneys and non-attorneys. Here are my thoughts, which focus on civil litigation:
Why the Difference Matters
|Litigation may never conclude with a trial (e.g., settlement, motion to dismiss, etc.).||A game/match is (almost) always played.||A lawsuit may be decided based on the tactics and events leading up to a trial; therefore, these tactics and events may be more determinative of the winner than traditional practice for a sporting event. (I know this is arguable.)|
|Litigation can span multiple years.||The sporting event is often over in a few hours or a week if there is a series of games, for example, the World Series.||The adversarial conflict is resolved much sooner in sports. In litigation there is more time to analyze the other side and build hostility.|
|Cases are rarely watched by the public.||Professional sports are, by their very nature, very public and watched by many non-athletes.||People typically behave better when they know they are being watched by others.|
|Lawyers spend most of their day sitting at a desk.||Athletes spend most of their day exercising.||Exercise helps regulate emotions, reduce stress, and improve sleep.|
|Some lawyers frequently oppose the same lawyers, while others rarely oppose the same lawyers.||Professional athletes frequently compete against the same athletes.||Knowing that you will compete against the same person/team in the future reduces the tendency to behave badly for fear of retribution.|
|Lawyers often change employers, but they choose their next employers.||Team-sport athletes change teams, but they are often traded rather than choosing their next teams.||Knowing that you may be required to play for a different team at any time can limit your impulses to engage in unsportsmanship-like conduct.|
|Emails, motions, paper, emails, emails.||Face-to-face interaction.||Email and paper motions remove the face-to-face contact and personal interactions. People are usually nicer to other people’s faces than they are when sending texts or emails.|
In summary, considering the “closest” career has many differences, maybe attorneys’ attitudes are just the nature of the game.
Prior to joining Sheridan Ross, she served as a law clerk at the U.S. Department of Justice, Antitrust Division, and for Sun Microsystems, Inc. She also worked for the University of Colorado Technology Transfer Office and BioServe Space Technologies. A graduate of the University of Colorado Law School, she served as production editor of the Journal on Telecommunications and High Technology Law and co-founded the Aerospace Law and Policy Association. In addition, Pearson received both her bachelors and masters degrees in Aerospace Engineering from the University of Colorado, College of Engineering and Applied Sciences. She completed a work and study abroad program in Regensburg, Germany from 2004 to 2005 and was the first University of Colorado student to complete an International Engineering Certificate. Pearson helped develop the program, which now sends engineering students abroad each year.