This article was originally posted in the Chicago Daily Law Bulletin on June 11, 2012
PUBLISHER: MICHAEL B. KRAMER | EDITOR: OLIVIA CLARKE
The topic of this article is civility. Please understand that I have no problem with an aggressive lawyer who lays it all out on the battlefield for his clients.
I like to think I am one of those lawyers. The problem I have is with the lawyers who lack civility – lawyers who treat others poorly, lawyers who lack common courtesy, dignity and decency. In a system fixated on winning, civility has become a somewhat meaningless issue to some lawyers. These lawyers not only hurt their clients but the legal profession in general.
Now, people who knew me early in my career might wonder why I think I’m qualified to write about civility. After all, back in the early days of my career, I never let a chance for a legal battle go by, even if I had to hit below the belt. Stories about my scuffles with other attorneys and insurance adjusters were prevalent at my first law firm. I was often referred to as a “pit bull” by my superiors and frankly, I liked it. However, looking back, I wasn’t always very civil. I thought lawyers were supposed to use whatever means necessary to “win” for their clients. It took some experience to learn that civility was not only the best thing for my clients, but the best thing for the legal profession.
Some folks think that in order to be a zealous advocate, you need to push the rules of ethics and decency to the edge. That’s probably how I used to think as a new lawyer. I was wrong. I learned that you can be civil and aggressive at the same time. Years of experience demonstrated you can even get angry, but maintain civility. Some lawyers I encounter just don’t seem to know that you just shouldn’t be rude, even under circumstances when they are upset and have a right to be.
You may be thinking, “I know some of these uncivil lawyers Willens is referring to, these bad lawyers who are causing a problem. It’s these lawyers, not me, who should solve the problem.” However, some of us might be part of the problem as well. Maybe we don’t yell or scream at people, but do we sometimes make personal attacks on opposing counsel? Are we obstructive sometimes because it helps our cause? When we see a peer being uncivil, do we keep our mouths shut? If we “civil” lawyers fail to act, we are in part responsible for the continuing decline of the legal profession and aren’t lawyers supposed to be the gatekeepers of the community’s legal and ethical sense? So what can we do?
We can start with law students. We can teach them, civility. I have the honor of teaching Advanced Trial Advocacy at University of Loyola, Chicago School of Law. In addition to teaching trial skills, my fellow adjunct professors and I teach civility, and we practice what we preach. If we see a student who thinks the way to win a case is to be obstructive or be disparaging to others, we point them in the right direction.
Let’s be more respectful to our judges. Though some judges have a reputation for treating lawyers badly I can’t think of a time when a judge was rude to me if I was complying with the judge’s orders and courtroom decorum. When lawyers are prepared and judges’ orders and courtroom etiquette is respected, the judge is respectful and the courtroom is respectable.
Be civil at all times, even when your opponent succumbs to dirty tactics. Don’t stoop to their level. Instead, be a role model. Assume someone is always watching you because the odds are, someone is. The influence that more seasoned lawyers have on younger members of the legal profession is immense. Whether you have a boatload of less experienced lawyers working for (and looking up to) you or not, you are likely a mentor in someone’s eyes. The days of people learning to practice law at the feet of a master is not as common as it used to be. Therefore, younger lawyers, more than ever, look to more seasoned lawyers, even lawyers who aren’t in their firms, for mentoring, for civility lessons.
Have a conscience. Keep in mind that the battle is between the clients, not the lawyers. You are responsible for your behavior. Disrespecting fellow lawyers is unnecessary, inappropriate and should be eliminated. I heard a story once about a senior partner of a law firm chewing out a younger associate after a long trial because of his civil relationship with opposing counsel. Word is that the senior partner even sent a memo out to all the lawyers in the firm instructing them that opposing counsel, regardless of the case, is our enemies and should not be treated in a civil manner. Shame on that senior partner. I never heard how the associate reacted, but if that “chewing out” changed his civil demeanor toward opposing counsel, shame on him too, and any of the other lawyers in that firm who changed their civil behavior based upon that memo.
While you are out there being civil, win. Demonstrate that civility and winning are not mutually exclusive. Instead, they go together hand in hand. Once you take down that obstructive, abrasive, rude, win-at-all-costs lawyer, that lawyer who sucks the life out of you, it’s a great day for civility. Every time you beat an uncivil lawyer, you not only score a victory for your client, but a victory for civility as well.