Quimbee logo
DMCA.com Protection Status

Dirty Litigation Tactics: How To Deal With The Rambo Litigator

4.5 out of 5 Excellent(28 reviews)
GD
Presenter(s)
Start your FREE 7-day trial
Preview this course and the rest of Quimbee's CLE library for free with a 7-day free trial membership.
Buy this course - $49
Get access to just this course for $49
Play video

Dirty Litigation Tactics: How To Deal With The Rambo Litigator

From graduation day of law school to the retirement party, no lawyer can avoid encountering the "Rambo"-type lawyer who, both in litigation and out, uses aggressive and oftentimes unethical behavior to advance their client's cause. Are these types of dirty-tactic attorneys unavoidable? Can they be sympathized with, effectively battled, or at least partially understood? In this seminar, we approach all those goals in the entertaining format of positing a look at them through A Natural History of the North American Silver-Tongued Rambo Litigator (Rambus litigatus), and we closely examine their cultural and jurisprudential origins; their "anatomy and physiology"; their development, range, and distribution; tool use; fighting behaviors; and finally ponder some proposals for their potential conservation or extinction.

Presenters

Geordie Duckler
Attorney
The Animal Law Practice

Transcript

Geordie Duckler: Testing. Testing. Okay. Welcome. Today I will be talking to on the topic of dirty litigation tactics, how to deal with the Rambo litigator. My name is Geordie Duckler, and I am going to be talking today, both as a trial attorney, and as a biologist. I come to the law with a scientist's perspective on the legal world. I have done both law and science for several decades. And my task in this presentation is the identification of a certain type of person.


So I've decided to approach it as a scientific study for lawyers. I had initially thought how easy it would be to simply denigrate and ridicule a certain type of lawyer who we are supposed to morally oppose, despise, sanction. But I have seen this subject, not just through a scope over a long distance across a field, but up close, face to face. And I've seen something of myself in them as perhaps you have, and I've thought more than belittle them, I want to understand this type of lawyer, since perhaps it might help me understand myself.


So I designed my task to examine an entire natural history of a fascinating organism who might help all of us as lawyers gain some small amount of self knowledge in our practices. So our observation is going to begin with naming our subject, and that will be Rambos litigators. That's the Latin name, or at least it is as far as I'm concerned in this presentation. And it's going to begin with a taxonomic distinction. We want to make sure that we're not going to confuse our subject with two other related organisms. One of them is litigators.


Now there is a fundamental category distinction between the genre of litigator who is passionate and vocal about their representation, and those who are manipulative and destructive about their representation. Alan Dershowitz, the author, once wrote, "Authority must always be challenged. And every person facing the wrath of authority must be represented by a zealous advocate." So every attorney has an ethical obligation to zealously represent their client. And part of our job then will be to leave the normal zealous advocate, the Rambos impassionada litigators, leave them alone.


The other taxonomic distinction is a species called Rambos Domesticus, the common jerk. We encounter them in environments outside of the law. And we have to deal with them everywhere, on the freeway in the grocery store, not just in the legal world, we're not after Rambos Domesticus, someone else has to deal with that person. We're not after either of those organisms. We're going to focus on Rambos litigators specifically.


Now, in terms of determining what that species is, I'll let you know. I have seen every Rambo movie there is, several times, and am fairly well-suited to explaining a certain background to our subject, because all subjects of study have their origins. And ours actually has two. One is a cultural origin from where the name comes from, Rambo. And the other is a historical origin from where the persona comes from, the litigators part.


The cultural reference is to, of course the John Rambo character played by Sylvester Stallone in a series of Rambo movies from the early 80s on into the present. And here's the archetypal Rambo description by two characters in one of those movies, Murdock says, "Colonel are you sure Rambo is still in balanced with a war. We can't afford having him involved in this mission and then crack, then the pressure of hell" Trautman says, "Pressure. Let me say that Rambo is the best combat vet I've ever seen. A pure fading machine with only a desire to win a war that someone else lost. And if winning means he has to die, he'll die. No fear, no regrets. And one more thing, what you choose to call hell he calls home."


Rambo lawyers reflect that character in a sense, a character who is the best with a gun, with a knife, with a bare hands, a man trained to ignore pain. They ignore weather, live off the land. Rambo maintains a blind allegiance to a system, and a Rambo lawyer maintains a blind allegiance to an adversary system and its values. And the attitude of a Rambo litigator is marked by three foundational premises. One, a single minded commitment to victory, that win at all costs attitude that the character has. Two, a rejection of moral responsibility for the lawyer's actions in their role as an advocate, no differently than the soldier's actions. Three, there's a belief that the duty of representation justifies any and all tactics that further a cause for the lawyer, as well as for the soldier. The quintessential Rambo lawyer is one who terrorizes, intimidates and office skates their way to victory in pursuit of the client's objectives. Just in a sense, as the Sylvester Stallone character laid waste to anything and everything in his way, killing and terrorizing the masses in an effort to achieve vindication.


Now in the movies, John Rambo, the character acts outside the law to achieve justice. The heroic results he achieves in the films justify the illegal acts he employees. In the deposition room, Rambos of the litigation world act outside the rules of discovery and claim that the ethical prescription to zealously represent their clients justifies their behavior. A Rambo lawyer has been defined to be a litigator who uses aggressive, unethical or illegal tactics in representing a client, and who lacks courtesy and professionalism in dealing with other lawyers.


Generally, a Rambo lawyer has one or more of the following traits or characteristics. One is a mindset that litigation is actually war, and that describes trial practice in military terms. Another is a conviction that is invariably in their interest to make miserable their life of their opponent. A third is a disdain for common courtesy and civility. A fourth is a wondrous facility for in manipulating facts and engaging in a revisionist history. The fifth is a hair-trigger willingness to fire off unnecessary emotions to use discovery for intimidation rather than fact-finding. And the final trait is an urge to put the lawyer themselves on center stage rather than the client or the course.


By the way, this cultural references to Rambo litigations new in name only as a style of litigation, it's been with us for quite some time. Well before the Rambo movies. It thrives because it is effective enough to be attractive to lawyers for a variety of reasons outside of litigation, but it has been present in courtrooms and law offices for well over 100 years.


Now, one of the ironies of the term Rambo as applied to rule litigators is that even though the original Rambo, while he's a trained killer, he was actually slow to anger and didn't kill until pushed. Those he ultimately defeats in the movies have to draw first blood, in other words, have to give him no choice, but to respond. If Rambo lawyers truly did that same, I responded in a Rambo-like way only when pushed, they might actually be respected instead of condemned. So we can note that the pejorative aspect of our subject's name is actually in a sense at odds with true cultural origins.


Now, the Rambo lawyer evolved as a fundamental concern concept and component of our entire adversarial system, which itself arose from a phenomenon called the Star Chamber. The court of the Star Chamber in English law was made up of judges and counselors that grew out of the medieval kings council as a supplement to the regular justice of the common law courts. Star Chamber achieved great popularity under Henry VIII for an ability to enforce the law when other coursework were unable to do so because of corruption. And it provided remedies when others were inadequate. It eventually was used by Charles I to enforce unpopular political policies. And eventually the Star Chamber became that classic symbol of oppression.


It found its support from the kings sovereign power, and was not bound by the common law, and Star Chamber procedures gave it considerable advantages over the ordinary courts. It was less bound by form. It didn't depend upon juries either for indictment or for verdict. It could act upon the petition of a single complainant or simply upon anonymous information received. It could put an accused on oath to answer at petition and reply to a detailed questions. And it lacked almost every safeguard, the common law procedures provided for the liberty of the subject.


The advocate's role in truth finding in the Star Chamber was such that if a legal representative failed to vouch for their client's version of the truth, the client was precluded from presenting their version of the truth. And instead was deemed to have simply confessed. One of the weapons was what was called the Ex officio oath, where one swore and then was held in contempt for not answering any questions, whatever they were including personal ones.


Now, truth in the justice system are very often at odds. The inquisition mode of the Star Chamber was certainly one fairly harsh way of getting at the truth. Boyer's arose as tools in a sense to pry truth out of inquiries after the Star Chamber existence.


One can only determine what is true by using one's awareness and judgment as experiences and conditions vary from person to person. Truth, of course becomes relative. In other words, in an effort to find the truth by reconciling cognition and object, each person views that object subjectively to the unique prism of their own beliefs. The absolute truth, what sits out there beyond people somehow remains elusive if not invisible and may not even exist. So the idea of using an advocate for one who is being questioned, developed to counteract that inquisition mode that the Star Chamber exemplified.


In our own civil litigation system in the US the task of attempting to accord the cognition of a particular fact with its object, we vest that in a thing called a fact-finder, most often a jury, but sometimes a neutral or a judge. The system recognizes that truth, as an absolute is unknown, and therefore defines truth as to whatever the fact-finder determines it to be. The role of the attorney in an adversarial system isn't to reconcile the cognition for the fact-finder, but rather to convince the fact-finder, using all lawful means, to adopt their client's cognition of the facts. The fact-finder then distills truth from competing versions of the same tale. The advocate's role was intentionally designed by our nation's founders to avoid the injustice of the Star Chamber.


So the fact-finder doesn't purport to know the truth at all, rather the fact-finder, jury or judge, merely determines which version of someone else's truth is more likely than the other's version. This truth doesn't profess to be more than what it is, really it's the fact-finders version of some event since lawyers evolved as tools to uncover truths, and since truths are relative things that change with circumstances. And since fact-finders determine truce, then lawyers are designed to influence fact-finders. That is a way of legal life.


Contrary to public perception then the goal of the US civil justice system is thus not solely or even principally the search for truth. The discovery of truth in our processes often incidental. Indeed the adversarial system has numerous rules and procedures, which actually hinder, if not for entirely the exposure of truth. We have evidentiary exclusions based on privilege and prejudice, the rule and personal injury cases prohibiting introduction of evidence of subsequent remedial measures treats truth as secondary, because society doesn't wish to deter defendants from repairing dangerous conditions, that evidence just isn't even admissible to help prove anything. The entire 400 series of the federal rules of evidence concerning the admissibility of evidence, I.e. offers of compromise and prejudicial evidence and prior bad acts, et cetera, those all embody a struggle between truth and other goals, competing goals.


Those rules convey a fundamental precept of our justice system. Truth is not all important. It is an ancillary concern which may or may not be unearthed by litigation, and which may or may not be suppressed by lawyers in their drive towards obtaining some sort of, "Just result." Under the US system perfection and truth are not guaranteed in any sense. In fact, the very notion of a perfect outcome is as difficult to define as a truthful one. When one acknowledges that trials freely concern, not who is responsible, but how responsible a particular defendant is, not who was actually hurt, but the extent of a particular plaintiff's injury, it becomes apparent that searching for truth in our justice system is problematic.


Now, the fact-finder when requested to make a final determination frequently finds itself, not reviewing blacks and whites of truce and falsehoods, but quite a bit of gray created by different versions of the same event. The recognition of truce different faces is one of the reasons our system doesn't even engage with the purpose of true seeking. We have recognized those limitations, and we have offered the best human alternative to seeking truth, which is to provide at least participants an efficient means to seek some sort of remedy. The system functions efficiently by attorneys abiding by the rules, but the fulfilling roles of advocates to the best of their ability.


Okay. So we know the name, something of the cultural and the historical origins with the Star Chamber. And now we can start to place Rambos litigators in context. Before we observe their community, their role in their own habitat, we need to look at them as an individual, as a litigator, defined as one who pursues a legal case, in short hunter and the gatherer, not just one, but both. A core form is thus a good place to start. So it's imperative that we examine Rambos litigators anatomy and morphology.


Now keep in mind that the litigator is a key member of a system which promotes liberty and peace among citizens, but not without some costs. In a struggle between adversaries, the ultimate truth may not be discovered or recognized by the fact-finder, but a simplistic preference for the truth may not comport with more fundamental ideals as well. Arguably, the rules of civil litigation don't restrict an attorney's mind as much during the discovery phase of litigation when the rules of evidence don't apply in their entirety. In the pre-trial period, when opposing sides exchange information evidence pertaining to the claims, many argue that it is in the form of the lawyer, their lawyer's own ethical obligation to turn over evidence in documents, in their possession, which aren't merely responsive to requests, but which are clearly relevant to any resolution, any issue.


For instance, the federal rules of civil procedure require an attorney to disclose relevant facts, turnover relevant documents, both as to client's claims and to defenses. This so-called full disclosure requirement, however, opens the door to excessive and improper litigation obligations. And it threatens to [inaudible] the role of the fact-finder, and it provides somewhat perverse incentives for clients. In other words, the disclosure rules could be misinterpreted to compel attorneys to produce and disclose all information probative of the truth of a claim, and could even, worse, make attorneys face sanctions for failing to produce documents, which the opposing side believes is probative of their truth, their relative truth of the claim.


Obviously in terms of their anatomy, then the Rambo lawyer, as with any lawyer, would be forced to determine what the truth of the matter is early as possible in their litigation career, in a sense, so that truth is available to all sides, given that our adversarial system, however, defines truth as the result reached by the fact-finder, this places anatomically both the Rambo attorney and all attorneys in the impossible position of having to guess how six or 12 citizens from the community in which the court sets might decide to give an issue before any trial is even held.


These concerns have prompted many courts to opt out of mandatory disclosure rules. In a sense, full disclosure actually hampers the search for truth. Full disclosure obligations are inappropriate because they discourage candor between the attorney and their own client. Clients would quickly learn that their lawyers were required to give adversaries all facts they know, all documents they see, no matter how harmful to their own client's interests. Clients predictably, would then routinely lie to their own attorneys and hide or spoil the aid evidence simply to preserve the chance of prevailing at trial. Self-interest would rule the day over the full disclosure rule, and such a system of full disclosure would place clients then in charge of the information available for trial and keep lawyers, including judges and juries, often in the dark. Litigators don't like a system, though, that potentially harms clients.


If we keep focusing on Rambos litigators morphology then, it's their physical form and posture as an attorney. It's what Rambos litigators looks like as a lawyer who has been distorted or deformed by this idea of absolute truth, being fluidly reshaped into relative truth that matters to us. The creative reshaping of the search for truth in an adversarial system will often affect and reshape the participants, and Rambos litigators is no different than all else.


In an advocacy system, the zealous advocates role is to present all evidence and argument and support of their position that an incident or event happened. The advocate's job is to forcefully argue to the jury that the facts support the client's version. We decided long ago, it is up to a jury to weigh the evidence and arguments and arrive at a decision that will be just in most cases, our decision to leave the determination of what is true up to the jury is supported philosophically by more than 200 years of largely peaceful and productive resolution processes. Truly the player who is best put in control of getting the truth out is, in a sense, both the attorney and the client and the jurist.


As to the client, client control litigation does at least preserve the dignity and autonomy of the client themselves, and enables them to present some sort of good faith position to the trial or fact when their life liberty, property is threatened. The advocate, for their part, can assist that presentation, and modern complexities preventing late people from adequately presenting their own position, advocates can lend their skills, specialized knowledge and experience to allow a client's position to be fully and properly presented.


So despite its weaknesses, an adversarial system does, in a sense, redress grievances in the most efficient manner known, if not the fairest. As the process works, participants have well-defined roles. The attorney, who is the zealous representative, diligently strives to do everything within the lawful bounds of their abilities to bring about a favorable result. The judge ensures that the parties comply with rules which govern the system. The jury, the fact-finder is the decision maker about the facts, and the attorney assist the jury in that task by aggressively and confidently investigating and presenting a side of the story. The lawyer relies upon the adversary to do the same. And it is true, this crucible of the adversarial system that the jury forges now the new defensible version of proof.


So Rambos litigators doesn't actually transform temples of justice into jungle habitats, as one commentator is described. Our American brand of justice is already a jungle habitat. Rambo just lives in a rougher part of it. There is no temples here. There is an organic thriving, constantly adapting, evolving jungle community, and all lawyers are members of that jungle community. Rambo lawyers are members as well. Besides what our subject looks and things like and what their origins are, they have also developed as a social member. Life history from individual start to individual end reflects that membership.


Now, remember placing a requirement to an attorney to disclose truth does not necessarily facilitate the search for truth. Clients, upon discovering truth, furthering obligations would probably opt out. Trial will be conducted by counsel lacking information, trials would become elaborate charades where uninformed attorneys confuse fact-finders rather than our current system. So that opens up a visionary role then of two highly qualified, equally armed warriors meeting in a forum, fighting for a measure of justice under rules rigorously enforced by a referee, the impartial judge.


Now in the system of various actors, we've already identified several of them. The judges who enforce, the juries who resolve, the clients who initiate, and the lawyers through whom everybody, in a sense, is heard and filtered. The lawyers system and role in the system is not to decide, but to persuade. In fact, the successful operation, the system has to keep those actors apart separate. At the core of this operation is the attorney-client relationship, and the privileges, which treat communications within that relationship as inviolate. The individuals and entities share a unique bond. It's both facilitated by independent upon the complete unbridled candor. However, the attorney-client relationship could be effectively severed by imposing some duty on a client's advocate to uncover truth, as we have seen.


So zealousness is mandatory. It's not just optional. That makes us sympathetic to Rambos litigators. Zealous advocacy is paramount among the lawyer's obligations, but lawyers of course face a diverse economy of interests. A lawyer is expected to present their case, but they must balance that with other responsibilities, they must refrain from making false statements to a court, and to not offer evidence known to be false, where they learn a falsity, they have to correct the error, including disclosing frauds upon the court. So their attempt and interest in being a zealous advocate is not unchecked.


So Rambos litigators has to start then as an armed warrior, not as a babe, but fully armed, just like Athena from Zeus's Brow. And they then appear in different life stages in different places to do their work, in private with the client, in public with the community, and in semi-private locales, just with other lawyers and witnesses. These are all life stages, and each appearance affects and enhances the next. There is no such thing as a Rambo lawyer only in one case, or in one appearance, or one deposition and nothing else.


Individual development as a Rambo lawyer is a function of multiple serial and connected appearances. Each working in conjunction with the other. In short, the way that that a Rambo lawyer grows is a function of their environment and how it helps them grow. The Rambo's litigators environment has, one, internal aspects, environmental components within the person themselves, which regulate their growth, two, external aspects, the promotional aspects, components outside of the person, which regulate their growth and constraints the limitations in the environment, which hamper or restrict the channel of that growth. All of these fall under the heading of professionalism and all are influenced by the others.


The development of the lawyer and the life stages the lawyer goes through directly impact what others think of them and how they are dealt with. As professionalism declines and lawyers become competitive [inaudible] commercial discourteous rude, public opinion of lawyers deteriorates. As public opinion deteriorates satisfaction, morale, and pride decline. And that result in, of course, things like depression, anxiety, hostility. When lawyers cope with stress, they can abuse substances. They can isolate themselves. They can overwork, and that can in turn lead to more unethical or overly aggressive behavior, further eroding professionalism.


These problems are interrelated. They affect society as a whole. Lawyers constitute the vast majority of our legislators, judiciary and government workers. So problems in the legal profession have consequences that reach far beyond the profession itself. There's evidence for these problems in the profession for de-professionalism, for low public opinion, for lawyer dissatisfaction, and they have their causes and their correlates and their cures as some are external. Evidences said to include frequency of disciplinary actions against lawyers, of frequency of malpractice suits, of aggressive behavior, and Rambo style litigation tactics swirl up inside of those, that win at all costs mentality is part of the commercialization of the legal profession. Part of the offensive advertising by attorneys, all cited as evidence of a decline. There is no dearth of disciplinary actions or malpractice claims, and the attorneys are aware of that. And they find that those actions in a sense substantially change their own behavior and further cases and further litigation.


Now all of the environmental factors affecting Rambos litigators in some odd way are skewed towards the male sex hormone, testosterone. Traditionally, law has been stereotyped as a masculine occupation. It pauses lawyers as self-confident, dominant, argumentative, aggressive, combative, cunning, ingenious, required or permitted to use drama for a fact, committed to prevail for the clients. Sometimes well address driven towards competence, ambitious, competitive, and it impresses folks who work long hours, right? Convincingly live nice upper-class lives. And some of the research those traits are supported by actual research on lawyers, but all of those traits are historically aligned with male, not female behavior.


Now there is a dearth of actual research on lawyers. The studies that exist are sparse and cohesive. They are divergent in their methodologies. Very few researchers have systematically studied lawyers, including their personalities, but at least the existing studies do support the existence of several traits. It consistent with the lawyer stereotype and they seem to be associated with testosterone levels.


Two studies have focused specifically on competitiveness. One defined it as the desire to win in interpersonal situations, and found that male and female attorneys were more competitive than doctors and nurses. Another found that female attorneys were more "masculine" than were female physicians, meaning in a sense, more competitive and aggressive, to other studies then hinted at a biological explanation for that competitiveness, particularly for trial lawyers.


First, a study found that women lawyers testosterone levels were higher than those of women nurses, teachers, athletes, and a host of other professions. Second, a study found that both male and female trial lawyers had elevated testosterone levels compared to other types of lawyers. The researchers actually asked lawyers to provide a saliva sample, which was analyzed to determine correlations between the subjects own biochemistry and their overall behavior.


Now, that seems odd. How is testosterone related to competitiveness? Well, it is the principal male sex hormone, but of course both sexes have it. Research indicates it is associated with sexual activity, interpersonal dominance, competition, persistence, higher spacial ability, and lower verbal ability, antisocial behavior, alcohol and drug use, marital discord and violent crime. It can increase the winning of a fight and decrease the losing of a fight. It can increase the anticipation of an important athletic contests, and it is found that blue collar workers typically have higher testosterone levels than do white collar workers.


Trial lawyers of both sexes were found to have higher testosterone levels than non trial lawyers, leaving the conclusion that among lawyers, trial lawyers are like the blue collar workers of the white collar world. Required to be active and energetic, focused on details rather than abstractions, and comfortable, almost too comfortable with interpersonal confrontation.


Now these biological findings don't indicate that all lawyers are more competitive, dominant, or aggressive than other people. They at least suggest that trial lawyers are. And trial lawyers have the most contact with the public, garner the most visibility, serve as the basis for most people's concept of what a lawyer is. The high testosterone trial lawyer image might come to represent the profession as a whole, and thus so would the aggressive lawyer.


As part of human competitiveness, lawyers also like to achieve, indeed, they are psychologically motivated to achieve. Research has identified tribes that explain people's motivations to achieve power, affiliation with others are a couple. The need for achievement is described as a need to compete against standards, to desire friendship or belonging, the need for power to lead, or have an impact on others. Studies about moderate needs for power and low needs for affiliation had exceptions with criminal lawyers. The studies had conclusions in which the more time an attorney spent in court, the more important wise for the need power to be happy to do the work. It illuminated some important differences between lawyers and judges suggested that they were so different, that judges were probably more unhappy than attorneys were. It recommended motivation testing base, law schools by law firms, judicial appointment committees, to try and ensure that certain lawyers be good fits for certain positions.


In terms of their environmental triggers and constraints. There is thus a gap in understanding even a difference in values and morality between lawyers and non-lawyers, it might be a gap that can cause lawyers to seem cold, dispassionate, uncaring, overtly logical, or fact-driven aggressive. Clients may perceive lawyers in those senses, but they include other people who are also rule oriented, aggressive and hard driving. In addition, lawyers thinking style and tendency towards conventional analysis may appear odd and even amoral to a public who think and feel, and reason differently.


A way of putting all this together is that lawyers, regardless of their actual gender, seem to embody masculine ideals of rationality in personality and aggressiveness. They seem to lack counter balancing ideals of compassion and compare, and if care, which the American public uses both of. This is gap promotes misunderstanding and mutual criticism. The very traits that make us lawyer-like in a sense, maybe characteristics that have led to aspects of this professionalism crisis. The lawyer personality may be intimately related to the prevalence of Rambos litigators, that business-like overly competitive approach to lawyering.


Now, as the number of lawyers has increased, competition for clients and fees has increased, competitiveness and need for achievement seem to lead to a behavior in a tight market, especially where they can also foster an undue desire to win cases, that intensifies unprofessional behavior as well. The disturbing proportion of law students who come to law school for uncertain career roles may explain part of this lead towards unprofessional behavior exhibited by attorneys. Empirical data hints at a conflict between law students having a confidence, socially ascended image, and their interviews of themselves as awkward, defensive, and insecure. When they become lawyers, this conflict may be inadequately resolved. It may emerge as defensiveness, and unwillingness to admit mistakes or to change attitudes or aggression towards others as a way to compensate for inner security. In a sense Rambos litigators may develop before the litigators part, before there is even a lawyer in place, but where the law student is being led towards discourteous uncivil behavior as a career path.


Some lawyers may experience other conflicts, individuals who don't resemble the lawyer norm in terms of values and decision-making approaches may appear to change themselves to fit the norm. Atypical individuals may experience conflict as a result of this transformation. So values that are lost or ideals that are processed may surface in unethical behavior after true values have been subsumed.


Okay. Our subject has a home, a habitat that it frequents and operates in. It is a location with multiple sub-regions. It is a home in an office, in a courtroom, in a public forum environments. Criticisms of Rambos litigators on their home turf is usually focused on egregious conduct in depositions, a place where there's usually no judicial authority to oversee proceedings. And there seems to be a general lack of supervision of those involved in the misconduct. In depositions, Rambo lawyers give explicit instructions to the deponent, make highly suggestive objections that coach witnesses to obstruct justice. They can employ harsh language, claiming their clients expect them to be tough, obnoxious. They argue that high stakes require high tactics, including intimidation. They declare their job is to seize control and to assert their dominance and a deposition room is a good place to do it. Of course, that natural habitat is not just confined to the deposition room, the courtroom as well. Whenever a lawyer engages in incivility abusive advocacy and in temporary conduct, a Rambo litigator's certain to fall behind.


The Rambos of the deposition room enter the trial courtroom often focus the tirades on the most vulnerable opponent, the new attorney. They may appear to smell the inexperience, and fear of those members. And instead of acting as mentors or as worthy opponents, take advantage with the sarcastic insult and the intimidating phrase. Rambo lawyers also appear to take particular delight in demeaning inexperienced young female attorneys. Some will actively undermine another attorney's case by using gender.


This strategy happily term sexual trial tactics has been observed... The author, Lynn Schafran, in her book, Women as Litigators: Abilities vs. Assumptions, observed like their male counterparts, women litigators also run the game from inspire to inept with styles ranging from understated to flamboyant from ingratiating to brusque. Society, however is still so steeped in gender-based stereotypes about the true nature and proper roles of women that is often difficult for those with whom women litigators come into professional contact to deal with them as individuals on the basis of ability, rather than the basis of assumptions.


In each of their home range environments, Rambo lawyers don't limit their attacks on their opponents to those who lack experience or those who are simply female. They have often threatened opposing counsel regardless of their status or their gender with violence, with denigrations of a religious background, accusations of even mental deficiencies. There is no limit to what they perceive might give them an advantage, including physical gestures. They might hide behind a misapplication of the rules, direct a witness not to answer a question, even though an answer is required, interrupt an answer to stop the flow of information. And one of the consequences of such tactics is the creation of a revenge motive in the opponent. In short, when they act within their home range, others around them are compelled to react given that they operate in the same range in the same company.


Now, the ethical lawyer who has had to endure the treatment may rail against it, or as we've seen may stoop to the same behavior, it's easy to understand that decision. It can easily make a lawyer angry to be unable to obtain properly discoverable information, because the Rambo lawyer has inappropriately instructed not to answer. If the ethical lawyer is billing by the hour, they know they'll have to justify that bill to the client eventually. And if they've charged a flat retainer, maybe losing money as the deposition drags on without transferring information. Within the confines of the deposition room, Rambo tactics that work with blocking access to information might frustrate another lawyer in which they become the same type of participant.


Now what restricts the range and distribution of that type of subject, because, of course within their habitats, Rambos litigators is circumscribed by certain types of boundaries. There are boundaries as to how far they can stray, and those include court rules, statutory CO's, professional regulation and ethics, ethical codes of conduct. We need to grasp these things, these restrictions and range, where they come from, how effective the obstacles, the barriers are, as obstacles, and as fact what prevents Rambos litigators from being everywhere, nomadic, far-ranging, overtaking the entire profession. So those barriers have to be explored.


Now in our justice system, there had been no coherent body of ethics law governing the relationship between attorneys and clients and the public in the early 20th century. We only came up with legal code of ethics late into the 1900s. And based on them, including on the ABA model code of professional responsibility, it eventually became adopted that there was guidance to provide to lawyers, ideals to which attorneys should strive and violations of disciplinary rules that would constitute misconduct for which lawyers would be subject to disciplinary proceedings.


Some of those rules, both the claim that a lawyer owed entire devotion to the interest of their clients. That's the zealousness part. Some of those rules continue to adopt that zealous advocacy role in very certain terms that the lawyer for a private party is and should be an officer of the court only in the sense of serving the court as a zealous partisan advocate. A lawyer should represent a client zealously within the bounds of the law, is the way that has been phrased. And there is that explicit duty on lawyer advocates that sometimes will even override the client's interest, as in when a client commits a fraud on the tribunal.


So in terms of barriers to range, then lawyers have a duty to treat the clients and clients opinions with respect, but to treat the process with respect as well. Their highest duty is to zealously strive for the best possible result. So it becomes unethical for them to act merely as stand-ins mouthpieces for the client, they have to rely on their own trained professional judgment as well. It is a hazard, a natural hazard in Rambos litigator's home range that they frequently encountered these ethical brambles or pits in which they might stumble and get stuck. One of the largest hazards Rambos litigators encounters is opposing forces in the adversary system, forces that involve balancing the duty of candor to the tribunal with the duty to zealously represent and refrain from arguing against a position.


All this means it means that as Rambos litigators migrates back and forth from hearth to hunting grounds to mating area to home again, they are consistently encountering objects that look like impediments, but may not actually be. They might be routes of assistance and ethical rules fit within that role. Lawyers have a dual role in an ethical system. They are agents of clients. And in that role, they help clients to pursue self-interest, manipulate the rules and procedures of a bizarre labyrinthian legal system. But lawyers also have to be agents of the common framework of institutions, customs, and norms with within those interests must be pursued.


So that dominant ideology of the legal profession, zealous advocacy or adversary ideal, it tends to obscure what the public thinks of the lawyer. The officer of the court phrase is not always apparent to the public as to what the lawyer's role is. And our system then makes that lawyers role prone to abuses. Lawyers serve as public agents in helping clients vindicate claims. And they can sometimes prevent agents, including government agents, from abusing the law, from gaining advantages that are not permitted by the law, in a sense, ethics doesn't really capture those public functions of lawyer. These are functions of citizenship in the broad sense of obligations to the framework of law and custom that makes the overall system work.


Again, it can't be overemphasized that the central premise of the American legal system is adversarial. It assumes that the pursuit of truth and protection of rights are best achieves for partisan presentation of competing interests. Under this framework, the tensions described tend to lead Rambos litigators to excess. In fact, Rambos litigators just does too much of both good things and bad things, access and competition, access and persuasion, access and demeanor in semantics, and even in economics.


Part of the behavioral suite of traits that Rambos litigators exhibits is that excessive [inaudible] conduct that takes steps beyond what the goal seems to require. In one sense, the excess type behavior can be explained as a heightened interest in the inquiry into the truth. Now, every litigator, Rambo and otherwise, uses all sorts of stratagems to minimize the effect on the judge or jury of testimonial disadvantages, even when the lawyer has no doubt as to the accuracy and honesty of the testimony. Lawyers often consider it a duty to create a false impression if they can have a witness who gives such testimony. If a witness happens to be timid, frightened, the lawyer in cross examination plays on that weakness in order to confuse the witness, make it appear that they're concealing significant facts, a skillful advocate by a rapid cross examination may ruin the testimony of an honest witness. We know that an honest witness may display undesirable characteristics in their most unpleasant form and describing them with a judge, jury is part of the good trial lawyers toolkit.


A good trial lawyer may sometimes destroy the effect of an adverse witness by making them appear more hostile than they are, by making them exaggerate or say something again. The clever cross examiner dealing with an honest witness may tempt the witness to indulge in any propensity for exaggeration and thus hang themselves. It may happen that not only is the value of the testimony lost, but the side which produces that when this suffers from seeking aid from such a source. Intimidating matters and putting questions, the former subject causing embarrassment, shame or anger may lead to dumb demeanor utterances that don't do justice to testimonial value.


Moreover, all lawyers, not just Rambo lawyers seek to discredit adverse witnesses and also to hide the defects of witnesses who are testifying favorably to their client. Lawyers may know that mannerisms and traits, which might discredit some folks might be taught how to cover up those traits when testifying. In cross-examination the main preoccupation is to avoid introducing evidence or allowing it to harm a case. A lawyer if possible won't ask a witness certain questions if they were to testify truthfully, and again, conceding the existence of facts are inimical to the client that cannot be proved by the adversary is part of the lawyer's job.


For Rambos litigators all those behaviors tend to the excessive. They tend to go beyond simply preventing that access to truth, but even to prevent the trial judge or jury from correctly evaluating even trustworthiness of any witness at all. In short, the Rambo lawyer aims at victory only at winning the fight. Only, not at aiding anyone in discovering any fact, the Rambo lawyer doesn't want the trial court to reach an educated guests, because that would probably be contrary to their client's interests. Yet. All of those stratagems are part of the maneuvering to which all lawyers are obligated to use to win their cases. They may be tricky. They may seem like they're taking into advantage, but they are lawyer obligations as well as lawyer tools, and they are accepted corollaries of that fight theory.


The effects of that fading, that method puzzles the citizen, the parties to which is suit know what they're fighting about, but find themselves often fading a very different case than what was actually launched. Those tactics, that combat require tools, they have to be learned. And then they have to be developed. And those tools include communication skills, vital for the success in all areas of life, in the law they become even more vital.


We can sometimes use tools in language to make others feel insecure. Name-calling, that type of communication. We can have dialogue retreat away from the subject matter to protect the self. We can use tools, language as tools, defensively as when we're conversing over a subject matter that we don't comprehend ourselves and we want others to not comprehend as well. Rambo lawyers use communication tools to control and dominate conversations with clients, with courts, with opposing counsel.


The tools are words, written and spoken, they can be harsh, vague, numerous, repetitive, suggestive, defamatory, simply wretched. They can appear visually through speech in written form in any form of docking you can imagine. And yet they are the same tools a non Rambo lawyer uses as well. The words within the document, they are simply different in the heightened adversarial manner.


Finally we can identify the psychological makeup of our subject. Rambos litigators swirls around number of psychological principles, one being group pressure and conformity, another being cognitive dissonance, a third being fundamental attribution error, and the fourth being the psychology of aggression.


As to the first conformity. This is an influence that results from one's willingness to accept others opinions about reality, conditions that strengthen it or where one is made to feel incompetent or insecure in groups in which someone needs to have their status admired, in which they need to observe other's behavior and be encouraged to respect a social standard. With this principle, the Rambo lawyer preys upon those types of behaviors, and two behaviors about thinking or coinciding with a group standard.


As to cognitive dissonance. We don't like to hold inconsistent thoughts or thoughts inconsistent with our behavior. We're motivated to reduce it. The Rambo lawyer tries to explain behavior in skewed ways to affect how others react to that behavior. And then as to aggression, which of course can be any physical or verbal behavior used to hurt or destroy, the Rambo lawyer's employs aggression to achieve all sorts of ends, dealing with adverse events and using it to obtain awards and to acquire social scripts.


With that, we need to decide, are we going to conserve the Rambo lawyer or try to extinguish them? America's current adversary system has produced a variety of these troubling behaviors, but they may be necessary to the proper functioning of the adversarial structure. They may be reinforced by the formal rules, by the culture of the profession. Although we borrow heavily from sports and war metaphors, solving problems or achieving justices are often lost in those translations and ethical codes that proclaimer advocacy should remain within the bounds of the law. Don't always address client loyalty and confidentiality, that also have value.


The model rules of professional conduct require lawyers to preserve client confidences. They require lawyers to protect client interests, but they don't necessarily require lawyers to be truthful or forthcoming, including in non courtroom settings, nor do they require lawyers to have an obligation to seek justice or fairness. For that reason Rambo litigators maintains a status in the courtroom, in the conference room, and will continue to have a role to play in terms of both the partisanship towards clients, the duty towards adversaries and towards the adversary system in general.


We can have an eye on the future of our subject and our answer to conserve or extinguish can lie with the client as being one of the chief sources of the problems. The chief source of Rambo litigators might be that relationship with a client. Sometimes law firm or lawyer-client loyalty is lessened or sent a mixed message by the goals of litigation. The environment sometimes makes the client want to be pleased, but the goal wants to be achieved even though the client might be displeased as well, too.


I want to conclude with the observation that when an opposing party is what we're presented, a lawyer can be a zealous advocate on behalf of a client. And in the same time, assume that justice is being done. Whatever emerges from the clash of adversaries is presumed to be just, and if both parties are well represented, the results still may be inequitable because the underlying process is flat. Wealth, power, prejudice is can often skew legislative and legal outcomes. Decision-making may lack access to relevant information. There may be undue influence. There may be unconscious bias that compromises trial judgments by the fact-finder. The rules may be either under inclusive or over-inclusive, because simply the cost of fine tuning rules is far too great.


That assumption that lawyers roles is simply to advance client's interests misdescribes a central aspect of the professional relationship, and it is that presentation of information options that will help shape objectives, not just client objectives, but objectives of justice as well.


We shouldn't really suppose that the fairest possible outcome always emerges from two adversaries arguing as unfairly as possible from opposing sides. It isn't intuitively obvious that that happens. And we can sometimes yield more accurate accounts by trying to find out who has the unequal information and resources in that fate. Lawyers don't normally rely on adversarial methods outside of the courtroom, nor do folks in other types of professions, they hire investigators, or they do research or conduct studies, and look at all aspects. For situations in which parties are not represented. There is no guidance and there's no reassurance. And the society that tolerates vast inequalities in wealth and costly litigation per procedures, the halves will often come out ahead, and Rambos litigators may often help that be achieved.


Prevailing ethical rules fail often to address the structural incentives and strategic opportunities that undermine the search for truth. Officers of the court may or may not have special responsibilities, but those responsibilities are not always attended to by every lawyer in the proceeding. We've seen the attorneys may present evidence that they reasonably believe, but do not know is false. They may withhold information. They may impose expense and delay on others, but those are not necessarily Rambo litigators participants.


As we've noted the adversary system itself creates lawyers needing to present clients where, not veracity, but victory is the ultimate goal. Problems that might arise with rights-based justifications for zealous advocacy assume that any legal interests deserves protection, but that may not be true. That may confuse legal rights and moral rights, things that are often at odds in litigation or in the courtroom.


Some conduct that is socially indefensible is technically legal. Some is too costly or difficult to prohibit. Some is just because the decision-maker is uninformed or compromised by special interest in recognizing it. To justify zealous advocacy in those contexts requires suspension of certain moral principles, and Rambos litigators preys on that suspension. And yet we can't completely override it. We need to recognize its value as well.


As a practical manner, there are plenty of differences in treatment of clients, of cases and of arguments. A right to maximize profits, which might be unsafe, but in perfectly regulated, they can hardly take ethical precedents over a consumer's right to be free from risk, and the attorney's refusal to assist legally, but morally dubious conduct doesn't necessarily compromise individual rights. Sometimes the client may just have to rethink ethical consequences of their own conduct or incur the costs of finding conduct that both meets ethical and legal and adversarial standards.


We can overlook inadequacies in our profession at a certain point. And at a certain point we can see adversarial advocacy as an end in itself. The result is what Rambos exploit as a corruption of judgment. A rationalizations for minor abuses and injustices can create a climate in which serious ethical lapses no longer appear serious, but seem themselves minor. Over time if they are our problem, they might just simply become someone else's problem.


G. K. Chesterton once observed that abuses in the legal system arose not because individuals are wicked or stupid, but rather because they simply have gotten used to the injustices. That problem is compounded when those same individuals are responsible for their own regulation, just as lawyers are recognizing, appreciating, but then for going and transcending participation in the Rambo experience is essential to a preservation of a just adversarial system that we participate in as lawyers and as citizens. With that, I will conclude our presentation. I hope you enjoyed it. And please review the resources at the end of the outline. Thank you. And good afternoon.

Start your FREE 7-day trial
Preview this course and the rest of Quimbee's CLE library for free with a 7-day free trial membership.
Buy this course - $49
Get access to just this course for $49

Course materials

Supplemental MaterialsHandout

Practice areas


Course details

On demand
1h 5m 36s

Credit information