Working with Senior Attorneys: Striking the Balance between Assertiveness and Deference

as·sertive·ness n. : a form of behavior characterized by a confident declaration or affirmation of a statement without need of proof; this affirms the person’s rights or point of view without either aggressively threatening the rights of another (assuming a position of dominance) or submissively permitting another to ignore or deny one’s rights or point of view. (Source: Wikipedia.)

def·er·ence n.:condition of submitting to the espoused, legitimate influence of one’s superior or superiors. Deference implies a yielding or submitting to the judgment of a recognized superior out of respect or reverence. (Source: also, Wikipedia.)

Enter the first year associate. She dresses and acts the part, but her youthful physique gives away her novice. The only time she might pass for a lawyer with any experience is when she is writing emails.

Even for those who entered the bar later in their careers, the sequential bar number system will ensure that the new lawyer is recognized. As soon as she serves a motion or discovery request bearing her name, the caption page will immediately alert the opposing attorney and/or the judge that they’re dealing with a rookie.

As in any other industry, the legal system and law firm culture are rigged to exclude newcomers in favor of the one-percenters of law–equity partners, corporate counsel, and others in prestigious positions. Young lawyers make mistakes; senior lawyers have a style. Stray from a senior lawyer’s style, and the young lawyer makes a mistake. On the other hand, different senior lawyers simply have different styles.

That a person has succeeded in college, law school, and the bar exam does not translate into success as a lawyer. Thus, the odds are against the new lawyer in proving herself to senior attorneys; there is almost a presumption of incompetence. After all, young lawyers do not yet have a style. It is our job as young lawyers to rebut that presumption.

I harbor no animosity toward senior lawyers. My personal experiences have been quite fulfilling and by and large enjoyable. Obviously, young lawyers need senior lawyers to learn the ropes. As I move further away from being a rookie, however, I do sense a tension. I am encouraged to stick by my guns, and to not give away my ignorance or inexperience. At the same time, I am asked to yield to the judgment (or style) of senior lawyers. Enter assertiveness and deference.

These two concepts are not entirely at odds. Both require respect. Both require the new lawyer to take a firm position. Walking the tight rope on this issue may be difficult, but it can be done. A recent experience of mine serves as a good example.

In preparing for an upcoming trial, we were required to submit proposed jury instructions. The model jury instructions contained four elements that the plaintiff–the opposing party–was required to prove. I deleted one of those elements based on a recent court opinion. When the senior lawyer on the case saw my modification, his first instinct was to include all four elements in the instruction. For the defendant, our client, the more elements the better. I could have said, “okay, I’ll make that change.” And perhaps a year ago, I would have made that suggestion to avoid rocking the boat; however, this would add nothing to rebutting the presumption of incompetence.

The key here for the new lawyer is to ensure that he asserts his position confidently, but to add a caveat: the decision is ultimately that of the senior lawyer. The senior lawyer may agree, disagree, or allow the new lawyer to make the decision. Regardless, the new lawyer will produce some evidence to rebut the presumption of incompetence. A big part of competence as a lawyer is simply being able to articulate a plausible legal position and sticking with it. The rest is style.

Ruben Escobedo is a civil litigation associate at the Ghods Law Firm in Santa Ana, CA.

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  • Jess Birt

    Spoken like a true intellect.

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