When a person goes through a divorce, a common misperception is that hiring an aggressive lawyer is important in getting a fair outcome. Although sometimes it is appropriate for an attorney to aggressively advocate for their client, continuous aggressive bulldogging can be detrimental to the case, resulting in a more expensive, drawn out case.
Appropriate situations for aggressive advocacy include:
– If a code provision in state law validates your position, and the opposing party is unaware of it.
– If the client wants to take a principled stand even though he has been advised that he is unlikely to prevail, and is willing to expend a lot of resources to make that argument.
– If opposing party attempts to intimidate you or your attorney, taking an assertive stance communicates that you will not be a pushover and sets the stage for negotiations rather than bullying.
Aggression can be detrimental when the parties are attempting to settle and the attorney is aggressively looking for a reason to reject each offer rather than trying to problem solve.
One example would be an attorney yelling at opposing counsel during mediation, “Why are you wasting my time with that stupid proposal? Give me something better than that.” A more productive response would be for the lawyer to counter with a new proposal and give opposing party something to work with rather than flat out rejecting the offer.
The difference between those two examples is that the aggressiveness of the first example does not contribute to the negotiations or move the parties closer to settlement. It will probably just make everyone more emotional and angry. This kind of repeated behavior can take a case that should easily settle and push it to trial, needlessly expending the client's time and money and potentially not resulting in any better outcome than the offers during settlement negotiations.