Listen to Your Mother

Most clients want their attorneys to be jerks, at least to the other side. And, sadly, most attorneys are more than willing to oblige, because a good fight can really run up legal costs. But in many cases, perhaps even most cases, that is not the best strategy.

As your mother always told you, you can catch more flies with honey than with vinegar. What no one has ever been able to explain to me is why you would want to catch flies, but according to the American Heritage New Dictionary of Cultural Literacy, the idiom stands for the proposition that you can win people to your side more easily by gentle persuasion and flattery than by hostile confrontation. In the litigation context, this could not be more true.

Recently I was retained by a client that was being defamed. Years ago an article in a newspaper had made some false statements about him, and he had fought for a retraction, which was published. Now, years later, a service indexed the old articles in the newspaper, and the article reappeared when our client’s name was searched on the Internet.

Most attorneys would have sent a letter threatening fire and brimstone for this repeated wrong, but I used the conciliatory approach, acknowledging that his was probably just an oversight, and that I was certain they would want to take immediate action to correct the mistake. Because I didn’t threaten legal action, the paper turned the matter over to an editor instead of an attorney, and it was quickly resolved. The article was removed from the index.

Had my demand letter mentioned legal action, the newspaper would have "lawyered up" to respond.  That lawyer would have felt compelled to give me some legal theory as to why the paper had no legal obligation to remove the article. We would have sent letters back and forth, advancing our various legal positions. The matter would then have moved to litigation, or at the very least we would have fought over the language of some release the lawyer would have demanded. Instead, by using honey instead of vinegar, the matter was resolved with a single letter and very little cost to the client.

Lesson to all businesses: There are times when a threatening letter is appropriate, but don’t immediately assume that is the best way to go. Don’t think your attorney is being weak if he or she is friendly in the initial contact to the opposition and, similarly, if your attorney is being a jerk for no apparent reason, ask why.

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