I recently read Clotaire Rapaille’s The Culture Code. Rapaille is a marketing researcher who “is an internationally known expert in Archetype Discoveries,” which is a field of study that he invented. In The Culture Code Rapaille discusses some of the results of his research into “the unconscious meaning we apply to any given thing—a car, a type of food, a relationship, even a country—via the culture in which we are raised.” A Code, in Rapaille’s argot, is the archetype imprinted on members of a culture in connection with such a thing.
In America, for example, the Code for Jeep is HORSE. In France and Germany, the Code for Jeep is LIBERATOR. In America, the Code for America is DREAM; in France the Code for America is SPACE TRAVELER; in Germany the Code for America is JOHN WAYNE.
Marketing is effective when it takes into account the Code for the thing being marketed. When America stops behaving like John Wayne (as, for example, when it shoots first), Germans’ opinion of America falls. Jeeps with rectangular headlamps don’t sell like Jeeps with round HORSE-like headlamps. Restaurants that treat food as FUEL (America’s Code for food) sell more food.
Connection to trial lawyering: we are trying to convince the jury that our clients’ behavior was on-Code, and that the other guy’s was off-Code (the basis of the Reptile trial: defendants’ off-Code behavior).
On Monday Miami criminal-defense lawyer Brian Tannebaum brought us North Carolina divorce lawyer Lee Rosen’s question, Why Do Some Crappy Lawyers Have Happy Clients?
Lee’s answer, which Brian endorses:
She does things that make it clear that she cares about her clients.
She rants and raves in court, like a maniac, on behalf of her clients.
She crosses over every line and gets personally involved with her
clients. She laughs with her clients, she cries with her clients. She
returns calls, she calls at night, she stays on the phone forever. She
loves her clients and it shows. She knows it and her clients know it.
She’d do anything to help them. They are her friends.
(I’m sure there’s something to this—maybe some clients aren’t able to tell, if their lawyers don’t engage in bizarre and boundariless behavior, that their lawyers care about them.)
Mike at Crime & Federalism sees the crappy lawyer’s behavior as tapping into the client’s narcissism for profit. (When you put it that way, it sounds cynical and of questionable morality.)
New York criminal-defense lawyer Scott Greenfield writes, of Lee’s crappy lawyer:
So the lawyer meets the client’s criteria for wonderful, even though
she fails to demonstrate competence from every other metric. That’s because clients don’t know better. Notably, many of the things the
lawyer does, and the client loves, are the sorts of things that no
competent lawyer would ever do, such as ranting and raving in court
like a maniac, at the expense of credibility before the court. Forget
that “communications skill” pap, clients love it when the lawyer is
their lunatic, saying and doing all the things that enable the client’s
catharsis. Which leads inexorably to the bottom line.
(I want to hear from Dan Hull on this. If the practice of law is all about clients, if the client is the main event, isn’t the crappy lawyer with ecstatic clients doing her job?)
Incompetent people shouldn’t be practicing law, whether their clients are ecstatic or not. If I had to choose between competency and caring, I would choose competency. Fortunately, though, competency and caring are not mutually exclusive. In fact, for lawyers who represent human beings, both are obligatory.
Knowing the Code for criminal-defense lawyers might help us better understand the success of the crappy BFF lawyer. Or, since the process for determining the Code for a thing is patented by Rapaille, the success of crappy lawyers might give us some insight into the Code for lawyers.
(While the Code for a thing predominates in that culture’s treatment of the thing, not everyone in the culture shares the Code. American foodies, for example, don’t share the food-as-FUEL metaphor.)
What might the predominant American Code for lawyers be?
The success of Lee’s incompetent BFF is consistent, of course, with the Code for lawyer being FRIEND. Friends are available at all hours of the day and night, and will do anything for you.
The IBFF’s success is also consistent with the Code for lawyer being FIGHTER. Many clients—especially those in criminal cases—have never had anyone fight for them. In the ordinary course of a case—criminal, civil, family, whatever—there are limited opportunities (almost none in the first stages of the case) for the lawyer to show the client her dedication by fighting for him publicly. By ranting and raving inappropriately in court, the IBFF is creating opportunities to demonstrate that she fights for her client, even where the more productive approach (as far as a successful resolution of the case is concerned) is more low-key. (Lawyers who describe themselves as “aggressive” might be tapping into this Code.)
FRIEND and FIGHTER would be benign codes. I suspect, bearing in mind portrayals of lawyers in popular culture, and the response that most non-lawyers have to lawyers, that the Code for lawyer most deeply ingrained in American culture is something more insidious.
While lawyers like to say that they would do anything for their clients, what they mean is that they would do anything, within legal, ethical, and moral boundaries, for their clients. The IBFF demonstrates that she has few boundaries; she would “do anything” to help her clients. This is not consistent with lawyers’ ethical duties and responsibilities to others, but it is on-Code if the American culture’s Code for lawyers is CHEATERS.