Some of my most popular posts have discussed Sun Tsu’s The Art of War as it relates to litigation and business in general. Another favorite of mine in that same vein is The Prince, written by Niccolo Machiavelli exactly five-hundred years ago this year. Considering my opinion that litigation is a form of warfare, the shrewd Florentine philosopher and diplomat, among other things, has a lot to offer. Consider this passage from The Prince:
From this arises the question whether it is better to be loved rather than feared, or feared rather than loved. It might perhaps be answered that we should wish to be both: but since love and fear can hardly exist together, if we must choose between them, it is far safer to be feared than loved.
As originally discussed by Machiavelli, this question was considered in the context of a ruler and his subjects. Pondering the application of the concept to the relationship between managers/CEOs/managing partners and workers is the obvious way one might discuss the idea. However, the concept can be extended beyond the ruler/subject relationship to the interplay between attorneys in civil litgation. In other words, on the litigation battlefield, is it better to be loved or feared by opposing counsel? Which one serves the end goal more effectively? These days, lawyers seem to be conditioned as early as law school to conduct themselves in a civil and cooperative manner when dealing with opposing counsel, but is this the most effective approach? I submit that it is not; at least not always.
Let me be clear that this statement is not meant to advocate any breaking, or even bending of the rules of civil procedure or the rules of professional conduct. In fact, wholesale adoption of Machiavellianism as an attorney would clearly run afoul of the rules of professional conduct rather quickly. Neither is it meant to encourage hostility for hostility’s sake. However, there must be a balance between civility and zealous advocacy, and the two do not always mix. Excessive civility cannot be allowed to work to the detriment of the client. While this may cause one to be “loved” among colleages and even opposing counsel, on the litigation battlefield I believe fear is far more valuable if a choice must be made. What do you think? Leave a comment if you have an opinion.