Good lawyers are not terrorists.

There is a pronounced tendency among non-lawyers to believe the best lawyer is the most belligerent lawyer, the one most willing to make things difficult for the other side. A certain segment too of beginning law students believe their professional role will be to make their adversaries’ lives as difficult as possible not by being smarter and more persuasive but, rather, by being more of a pain in the butt.

First, this attitude is very wrong-headed. Mindless aggression can be effective, but only when matched against mindlessness. A smart lawyer can calmly run circles around mindlessly aggressive lawyers. Fortunately, as well, the court system has its limits. The Blog of the Legal Times reports that a court ruled that Robert Fastov, a D.C. art dealer who also happens to be a Stanford Law School graduate, “must pay more than $630,000 in attorney fees and expenses to Christie’s for a suit a judge said only served to harrass the auction house after it refused to sell a painting . . . .”

Typically, and almost always, both plaintiffs and defendants in U.S. lawsuits pay their own costs of litigating, win or lose. In fact, this rule is known as the “American Rule.” The “English Rule” requires the losing party to pay the winning party’s costs. Thus, in England, far fewer individuals sue corporations because the individuals know the corporations can afford to pay the plaintiff’s costs, while the plaintiff cannot afford to pay the corporations’ costs of defense.

But, as the Fastov case indicates, someone can act so egregiously in U.S. courts that he will be charged with the costs of his adversary’s lawyers. The interesting part of the decision is that the court does not discuss the merits of the plaintiff’s lawsuit (which were plainly non-existent); rather, the decision affirmed a trial court decision that focused on the enormous size of the briefs and the enormous number of documents the plaintiff submitted in the case, making the point quite clearly that the mass of materials was useless merely because it was such a mass. As the trial court’s decision (pdf) explains:

In response to defendants’ motion for summary judgment, plaintiff has attempted to file a 59-page opposition, a 90- page declaration in support of his opposition, a 461-page statement of disputed and undisputed facts, and three volumes of exhibits totaling approximately 1,500 pages. A first-year law student is taught that a filing in support of or in opposition to any motion should be tailored to achieve the paramount goal of assisting the Court in rendering its decision. Plaintiff’s filing does the opposite. It is an abuse of the litigation process.

The crucial point: A first-year law student is taught that a filing in support of or in opposition to any motion should be tailored to achieve the paramount goal of assisting the Court in rendering its decision. A lawyer’s job is to give the judge the tools to rule in his client’s favor. Your job is not to give the court a bunch of information from which the court can derive its own decision and reasons. If you explain to a court in a convincing fashion why your client should win, the court is likely to adopt your reasoning and rule for your client. I have even had courts cut and paste my brief into their opinions. When they’ve done so I haven’t felt plagiarized; I’ve felt vindicated.

Neither is your job to so overwhelm the other side they want to give up. That, plainly, was Fastov’s intent. After Christie’s had refused to sell a painting Fastov owned, he sent Christie’s a 79-page letter, with hundreds of pages of attached exhibits, threatening to sue for damages “in excess of $265,000″ and “punitive damages in an amount to be determined, but considerably in excess of $1,000,000.” He also explained that “the cash outlays that Christie’s will, to a legal certainty, have to make (and will not recover, even if Christie’s wins) to defend the litigation will be approximately $221.3K (very conservatively understated) or (more realistically) well in excess of $300K.” He went on to threaten dire consequences if his demands weren’t met:

[I]f you decide for tactical purposes to delay your response beyond my three week deadline, Christie’s costs of settlement will increase appreciably. If you decide to wait to see if I actually file the suit before approaching me to discuss settlement, you will find that the chances of achieving settlement are virtually nil, unless Christie’s is prepared to reimburse me for all of my costs to date of settlement and pay all of my compensatory damages, which will be well in excess of $265K, and an extremely high percentage of the amount of punitive damages prayed for in the complaint, which shall be in the millions of dollars. . . . Do not bet against my inclination, will, ability, experience, and tenacity to file and successfully maintain [Fastov v. Chritie's] through to its successful conclusion. It will be the worst and most costly conclusion and bet of your life. The settlement proposals and the purposes of this letter are inherently pacific in nature. If you and Christie’s force me to go to war, those who have litigated for, with, and against me will tell you that I am extremely tough, intelligent, and tenacious. I give no quarter and ask none, and above all, I will take any and all actions, both within and without the courtroom, that do not violate the rules of professional conduct, necessary to achieve Christie’s unconditional surrender.

When Christie’s failed to give in to his threats, Fastov filed a 225 page (!) complaint. The complaint begins the lawsuit. The motion for summary judgment (in connection with which he filed approximately the 2,100 pages referred to above) is an effort to dispose of the case before trial. If you need that much paper to convince a court you’re right, you’re either inept or your merely engaged in terror. More likely, you’re both inept and engaging in terror, as was Mr. Fastov. Your job in a lawsuit is to get the court on your side, not to destroy the opposition. If clients and lawyers understood this was the purpose of litigation we all, lawyers and clients, would be better off.