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Hufflepuffs Finish First?

Edward A. Marshall and Elisabeth Feeney

Summary

  • If we adopt the stereotype of the lawyer as a hard-nosed, aggressive fighter, one might expect halls of litigators to be sorted most frequently in the first and fourth houses, maybe even trending Slytherin. And, in the right doses and at the right times, litigators must be prepared to draw on the Slytherin traits.
  • Practice for a decade or so, however, and you begin to realize that those instances are somewhat infrequent. There may be two or three inflection points in a case or a deal where the gloves really do need to come off and counsel can show no flexibility. But even then, there is a difference between aggressive and acrimonious.
  • It is not just the client’s interests that suffer from Slytherin-like litigation. Lawyers who know when to transition to a Hufflepuff approach attract work that transforms them from mere service attorneys into business generators.
Hufflepuffs Finish First?
Stephen Chernin, 2005 Getty Images

“Forced” is a strong word. But lawyers at our organizations were recently encouraged (and, at times, goaded and shamed) to take the Harry Potter Wizarding World sorting hat challenge. By virtue of their answers to enigmatic questions, participants were grouped into one of the four fictional houses that make up the Hogwarts School of Witchcraft and Wizardry in J.K. Rowling’s epic series. There is Gryffindor, known for bravery and assertiveness; Hufflepuff, known for hard work, loyalty, and fairness; Ravenclaw, renowned for intelligence, planning, and wit; and, finally, Slytherin, marked by cunning, ambition, and ruthlessness.

If we adopt the stereotype of the lawyer as a hard-nosed, aggressive fighter, one might expect halls of litigators to be sorted most frequently in the first and fourth houses, maybe even trending Slytherin. And, in the right doses and at the right times, litigators must be prepared to draw on the Slytherin traits. Professional, to be sure, but unwilling to bend where doing so might prejudice the client or impair the client’s rights. In certain instances, fidelity to the client’s interests requires that lawyers take hard lines, stand firm, and pursue aggressive tactics to achieve the client’s ends.

Practice for a decade or so, however, and you begin to realize that those instances are somewhat infrequent. There may be two or three inflection points in a case or a deal where the gloves really do need to come off and counsel can show no flexibility. But even then, there is a difference between aggressive and acrimonious. You can reject an adversary’s argument without turning it into an insult or questioning the adversary’s candor. And, absent prejudice to your client, you can be reasonably accommodating when it comes to scheduling, logistics, and turnaround times.

At the risk of stating the obvious, exhibiting courtesy, reasonableness, and professionalism to your adversaries can ultimately benefit your client’s interests. Pointless conflict drives up legal fees. Punishing demands on your opponent (e.g., for discovery or lightning-fast responses) are likely to be met in kind when the other side voices demands of its own, burdening your client in equal measure. Courts are unlikely to be receptive to a litigant when its counsel is behaving like a street brawler or a petulant seventh grader. And, when it comes time for resolution (as well over 90 percent of civil litigation ends in settlement), pent-up acrimony, hostility, and distrust will make it more challenging to reach a resolution that fairly accounts for the realities of the merits and continued litigation. Where resolution fails and trial ensues, moreover, fact finders are rarely seen rooting for the side whose attorney is (or, in deposition replays, was) treating the adversary or opposing counsel badly.

But it is not just the client’s interests that suffer from Slytherin-like litigation. The lawyers do, too. And we’re not talking just about peace of mind, fulfillment in the profession, or a holiday weekend untainted by snarky emails from your adversaries. Lawyers who do not adopt a Slytherin posture attract work that transforms them from mere service attorneys into business generators.

From the perspective of outside counsel, litigating with reasonableness and civility keeps legal costs down and quick resolutions up. Perhaps more importantly, it also tends to keep in-house counsel’s life easier—one of the greatest gifts an outside attorney can provide to his or her in-house counterpart. It is more likely to result in repeat business or even subsequent retention of a courteous, effective former opposing counsel.

Another reality, often overlooked, is that lawyers practicing in the same field as you, with whom you engaged with competence and professionalism, may be your next and best source of a referral. Whether it’s due to a conflict, a need to identify counsel for an aligned co-party, or a desire to expand the outside counsel pool, those lawyers may have needs to identify new lawyers outside their organizations to take on future matters. But opposing counsel is not going to be inclined to refer business to an adversary who treated them or their client with needless incivility. Treating people fairly and amicably makes it more likely that others will choose you as an ally, even if you start out as an adversary.

And the same is true when operating in the role of in-house counsel. In-house counsel work tends to feature a cast of unique characters. Some people are not quite as tolerable as others, and it can be tempting to employ the Slytherin traits with less likable cast members. But your reputation will develop as quickly as you form opinions about your castmates; if you approach every interaction with animosity, you will find goodwill in short supply the day you are in need of some grace.

Aside from a fear of karmic retribution, being a delight to work with (a Hufflepuff) can, in fact, enhance the quality of your representation. Take, for example, settlement agreement negotiation. The classic Slytherin approach to negotiating would involve a great deal of smoke and mirrors, hiding the ball, and any other euphemism the authors can conjure to describe an intentionally deceptive negotiation process. Speaking from experience, though, when lawyers on opposing sides ignore each other in favor of a relentless pursuit of “victory,” the negotiation process tends to feel like teaching algebra to a sea slug: supremely frustrating and utterly impossible. Even if the effort is successful, there exists a real possibility that the other side is neither able to fully understand nor able to fully comply with any resulting agreement.

Contrarily, a Hufflepuff approach recognizes that, while objectives are important, realities cannot be overlooked. Identifying the “bottom line” and exercising transparency as to timelines and expectations can lead to stronger relationships and more mutually satisfying results overall.

Easier said than done when the lawyer on the other side of the table from you is the Dark Lord himself. But in those cases, before you match your adversary’s energy, remember: A dispute cannot always be resolved directly, contracts must occasionally be terminated, and sometimes litigation cannot be avoided. But even in those scenarios, reasonable, cordial communications can make the situation less expensive and acrimonious for everyone. Plus, those communications make much better exhibits when a dispute ends up before a judge or jury.

So what did the sorting hat say? A lot of highly successful litigators, including those with the most impressive books of business, are Hufflepuffs. When one closely reflects on what it takes to succeed in this profession, perhaps that shouldn’t be a surprise.

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